Family breakdown, at any time, is a traumatic process for all involved. During these uncertain and unprecedented times the challenges and responsibilities needing to be met may seem heightened. To help give some clarification around the legal guidance for families we have created the below guide.
The challenges for many have been numerous during this time, it is important for parents to consider their Child Arrangements Orders and any other similar informal arrangements. As guidance has been changing and adapting to tackle the virus, this has in some cases become difficult for parents to do.
Whilst many parents have managed to work together to help with childcare and ensure the children still see both parents as previously arranged. The grey area comes as certain government advice seems to contradict the directions of previous arrangements. However, COVID-19 should not have in the past, present or future be used as a standalone excuse to prevent one parent from seeing their children. Similarly, it should not be used as a stand alone excuse for Orders to be breached, unless completely necessary (such as isolation or shielding).
Each individual is going to need assessment based on their individual circumstances. It is important to remember that every decision made needs to be made in the best interest of your children, whilst being able to comply with Court Orders as much as possible. Any detraction from an Order that hasn’t been consented to, will need to be clearly and fully justified and evidenced to the court. If this is not the case it may be treated as a breach of Court Order, leading to potential sanctions.
If you need to discuss your circumstances in more detail, our team are working from the office and available to help guide you.
Separate court entrances for domestic abuse victims:
An expert-led review has given way to the Ministry of Justice pledging a ‘major overhaul’ of family courts. The review generated a report that shows the risk of harm to children and parents in private law children cases, it has been said that the report highlights many long-standing failings.
One of the key findings is the fear that many mothers suffer when visiting court, that they will be confronted by their abuser. With one case detailing an attack that took place on one mother’s lawyer, despite this being reported the judge was said to have set it aside. It is important to remember that fears exist for both mothers and fathers.
With the report also highlighting how many parents were made to feel dehumanised and humiliated after reliving their abuse, to receive little signs of respect or care from judges and magistrates.
With fathers also telling the panel that they could not always afford legal representation, leaving them to conduct the case themselves, which left them feeling like a nuisance for requesting special measures.
With many more findings being reported, the Ministry have begun to give what changes will be put in place to the courts. With separate entrances and waiting rooms, as well as protective screens to shield victims from their alleged abuser in court all being announced. Judges will also be more easily able to issue barring orders preventing abusive ex-partners from repeatedly dragging their victims back to court. With presumption of ‘parental involvement’ encouraging a child’s relationship with both parents also set for review.
Now more than ever, it is not uncommon for divorcing couples to continue living within the same house throughout the divorce proceedings. With financial restrictions and family commitments making moving out off the cards until everything is finalised.
For many this can be a very challenging period and the current Government guidance on Coronavirus only adds to the complications.
One of the worries you may be experiencing is how you are going to communicate with your solicitor about your divorce with your spouse around the house. To help we have outlined the ways in which we are able to help you, should you find yourself in this situation.
Ways we can help:
- Unless we are told otherwise, no post will be sent to your home address.
- We have remained fully contactable throughout COVID-19, our team are also now back in office and so phone calls or emails will be promptly replied to.
- PPE steps have been taken to ensure safety of you and our team, and so, a face-to-face meeting can be arranged. We may also be able to offer you a quiet private office space for you to join a scheduled court hearing that is due to take place via telephone or video.
- Should you be able to and wish to, we are also able to meet with you via a video call.
- We will also speak with you to see what hours work best for you to meet with us, outside of normal working hours for telephone or video calls can be arranged. This is to help support you if you are a key worker or are needed throughout the day to homeschool and care for your children.
We understand that everyone's living situation is different, the steps above are just some of the ways our experienced team are here to support you.
As many are aware, in order to begin divorce proceedings immediately, one spouse must allege to committing adultery, unreasonable behaviour or desertion. However, this is now set to change. A bill introducing no-fault divorces in England and Wales has passed through the house of commons by 231 votes to 16 against.
The new bill, which will now be passed to royal assent, will be actionable by a statement that the marriage has broken down irretrievably. Under this new bill, couples are also able to apply for a divorce together, representing a mutual decision to divorce.
Furthermore, keywording around divorce is to be changed under the new bill, with "decree nisi" and "decree absolute" to "conditional order" and "final order". "Petitioners" will also become "applicants".
Under the bill proposals, there must be a minimum six-month period between the lodging of a petition to the divorce being made final.
This new bill is set to reduce the trauma that many may experience when filing for divorce, modernising the system and allowing a reduction in tension.
The Government have announced plans to help kick-start the UK property market by easing legislation concerning the higher rate of Stamp Duty Land Tax (SDLT) purchasers are required to pay on acquiring a second dwelling.
Whilst this comes as good news for many, many are now worried that they won’t be able to sell their current property within the current relaxed window. However, this is widely received as a welcome change to the usual SDLT protocol that saw purchasers only being refunded the higher rate of SDLT if they sold their original dwelling within three years of acquiring their new home.
This measure is being put in place largely due to the advice given again marketing properties between 26 March and 13 May 2020. Now that COVID-19 restrictions are beginning to ease, the Government are formulating ways to encourage property purchasing. This includes them currently reviewing those who are unable to sell their previous residence within three years due to “exceptional circumstances” out of their control. These exceptional circumstances will include the impact of coronavirus, as well as any action taken by a public authority that may prevent the sale of a property.
The lockdown our nation has found itself in throughout the past few months has had many effects, some of these however are not necessarily the first thing that comes to mind.
It seems that many of us have been taking the time at home as a green light to get a new pet to keep us company. As a result there has been a 50% increase in enquiries for pet friendly properties (research conducted by proptech rental service Home Made).
Pets are often not accepted by landlords due to the wear and tear that can occur as a result of accepting them, there are however benefits to accepting those with pets as they often stay much longer, as they do not need to move in order to get their desired pet.
Charging an extra pet deposit is a great way around easing your worries. There is also increased demand for rentals that also have gardens, bike storage facilities and are within close proximity to cycle lanes.
If you are looking to begin accepting pets for your tenants, we can help you ensure that the correct legal documents are in place to protect you and your property. Please click here to get in contact with us.
It seems that there are some estate agents that are looking to trick potential buyers into completing actions in an order that Kirstie has described as ‘NOT legal’.
The practice in question is the evidence of many estate agents forcing potential buyers into meeting with a mortgage advisor and going through a mortgage application prior to being able to view a property.
This may be viewed as an estate agent ensuring that someone is committed to purchasing a property but many also see it as a way for estate agents to trap you into using their in-house mortgage adviser.
Both Kirstie and our team want to make you very aware that it is not a legal nor necessary action, whilst it may seem acceptable due to the number of estate agents found to be doing this, please be sure to contact us if you experience any request that you deem to be suspicious.
Something that may be at the forefront of your mind, given the current times we are in, is what would happen to your business if you were currently unable to work. We have put together the below article to guide you through some of the steps you can take depending on your circumstances.
Whilst no one wants to think about falling ill, it is of paramount importance to have a plan in place during this pandemic. On-the-other-hand, the below information can also be helpful when it comes to you taking a long holiday or sabbatical.
You may need to appoint someone else to make decisions on your behalf. The person you choose should have good knowledge of your business and someone you trust, they must also be readily available to make decisions on your behalf quickly. You can put a limit on how much authority they have. We also advise you informing all key contacts inside and outside of your business know of the person you have chosen to delegate to.
Our team can help you do this formally through a Property and Finance Lasting Power of Attorney, this is especially important if they will need to contact people outside of your business.
Absence within partnerships may cause less of a problem, due to the fact that there will be other partners to keep things going.
However, a proper partnership agreement is something that we advise to have in place. It will set out the actions or decisions that need full partner or minority partner agreement.
This is important to put in place as when circumstances change and decisions need to be made quickly, without all partners there, many partners may begin to reconsider their governance and decision making process.
However, many partnerships allow for partners to notify decisions by proxy, which alleviates many of the problems. Yet it is important to remember that sometimes partners may not be able to vote by proxy, especially where absence due to illness is present.
Shareholders & Directors
Shareholders and directors may want to think about how to delegate actions and decisions temporarily. In many ways their position is similar to that of a partner, except that their duties and powers are set out in the memorandum and articles of associations of a company. Their powers may also include the right to appoint an alternate director to act on behalf of an absent director or to appoint a proxy to vote in shareholder meetings. Limited companies as a legal entity in their own right often have the power to appoint an attorney to execute legal documents on their behalf.
An LPA can be used to facilitate actions and decisions needed in temporary absences. Certain responsibilities and duties held as a director cannot be delegated as they are personal to the individual.
Individual businesses will have their own structures and needs, our team are still working from home and are able to help you with any of the above issues and the best route for you to take. Individual businesses will have their own structures and needs, our team are still working from home and are able to help you with any of the above issues and the best route for you to take. Please click here to get in contact with us.
How to provide for someone to look after your affairs if you become unwell
As the COVID-19 pandemic has highlighted, no-one knows what the future may hold.
Whilst it is always a good idea to let your family or close friends know your wishes, this is not legally binding. By making a Lasting Power of Attorney (often referred to as an LPA) you can make sure you know who will be making decisions for you and looking after your affairs if you are unable to do this for yourself, whether due to mental health or physical incapacity.
What is a Lasting Power of Attorney?
A Power of Attorney is a legal document by which a person (or persons) is appointed to make decisions on behalf or another. The powers given under an ordinary Power of Attorney can only be exercised whilst the person giving the power (the Donor) has mental capacity.
In contrast, a Lasting Power of Attorney continues to have effect should the Donor lose mental capacity. It is a vital safeguard against the problems which can arise from the loss of mental capacity, however caused.
Who can make a Lasting Power of Attorney and who should be appointed?
Provided you are aged 18 or over, solvent and have mental capacity, you can make a Lasting Power of Attorney. You appoint an Attorney or Attorneys who you trust, are willing to act as such and have the appropriate skills to make decisions on your behalf. These can be family, friends, colleagues or professionals, e.g. a solicitor or accountant. You can provide for two or more Attorneys to act together, separately or a combination and you can include instructions or guidance. You may wish to appoint a replacement Attorney in case your original Attorney is unable to act. The powers given under a Lasting Power of Attorney remain in effect until it is revoked by the Donor revokes or upon the Donor’s death.
Does giving a Lasting Power of Attorney affect your ability to make decisions?
No. The appointment of an attorney does not take away your ability to make decisions for yourself and you should continue to deal with your own affairs as normal, unless you specifically ask your Attorney to take over, or your mental capacity diminishes. The Attorney is under a duty to take over should you lose mental capacity.
The powers given under a Lasting Power of Attorney can only be exercised once the document has been registered with the Office of the Public Guardian, in accordance with its requirements. Registration can take several weeks, and it is advisable to apply for registration as soon as possible to prevent delays at a time when the powers may have to be exercised.
What sort of things do Lasting Powers of Attorney cover?
There are two types of Lasting Powers of Attorney: Property and Financial Affairs and Health and Welfare. You can appoint different Attorneys for each, and they provide for your Attorney to deal with, for example:
Property and Financial Affairs:
- Selling and buying property
- Paying the mortgage
- Arranging property repairs
- Paying bills
- Investing money
- Dealing with the bank
- Dealing with HMRC
Health and Welfare:
- Where you should live
- Your medical care
- Who you should have contact with
- What you should eat
- What kind of social activities you should take part in
Who has to sign the document?
You will have to sign the Lasting Power of Attorney and so will your Attorney/s and any replacement Attorney. It also has to be signed by an independent person to confirm that you have the mental capacity to give the powers and to sign the document. Each signature has to be witnessed by an independent person, but it is not necessary for the same person to witness all the signatures.
During the COVID-19 social distancing restrictions, it may be difficult to find someone who is prepared to act as a witness, but there are ways that this can be correctly done whilst still maintaining social distancing. For example, by watching through a window or over the garden fence. We can explain what the requirements are and how to deal with them and welcome any questions you may have.
What happens when there is no Lasting Power of Attorney?
In the event of loss of mental capacity, the Office of the Public Guardian will appoint someone to look after your financial and property affairs (a Deputy), but there is no guarantee that this will be the same person as you would have chosen for yourself and it will not automatically be your spouse or civil partner.
A Donor has to operate under strict guidelines and report to the Office of the Public Guardian. They may not be able to implement your specific wishes. The process of appointment and the administration or your affairs is more complex and costly compared with the making, registration and administration of a Lasting Power of Attorney.
How much will it cost to make and register a Lasting Power of Attorney?
Our fixed charges: Per Individual Per Couple
One LPA (either type) £325.00 + VAT £475.00 + VAT
Both types £475.00 + VAT £850.00 + VAT
We are pleased to offer a discount to Blue Light Cardholders
The Office of the Public Guardian charges a registration fee of £82 for each Lasting Power of Attorney. In some circumstances, this may be reduced or exempted.
At Linnitts we can advise you on who would be a suitable Attorney, guide you through the process of appointment and ensure the formalities of appointment and registration are correctly dealt with.
As an Attorney’s power ends when you die, it would be wise to consider making a Will or reviewing your existing Will at the same time as making a Lasting Power of Attorney, to ensure that your estate is dealt with by the person or persons you choose.
Linnitts can advise and help you with this.
WE ARE OPEN FOR BUSINESS
We may not be able to meet you face to face for now, but we are working from home and are here to help you.
We are all now aware that we are living in challenging and uncertain times. Whilst we all worry about the possible consequences of COVID-19 on our health and wellbeing, the economy is also taking a massive hit.
Businesses are under immense pressure, with the effects of the virus on cash flows being felt worldwide and the current restrictions from our Government meaning that many businesses will be forced to suspend operations or completely change their way of working.
If your customers come under financial difficulty you will need to react to this quickly, in an attempt to lessen the blow upon your own cash flow.
Communication truly is key, if you keep in good contact with your customers you will be able to give you warning that they are in financial trouble. This will allow you to restructure any payment arrangement, this will allow you to maintain your own cash flow and your relationship with the customer.
If they have significant debt, or if you feel unsure about your customer’s long-term financial position and the likelihood that they will be able to meet their payment obligations, you could look to obtain some additional security.
Personal guarantee and indemnity agreements
There is always the option to enter into a personal guarantee and indemnity agreement with a director of the debtor or parent company. This agreement would make them liable for the debt if the company cannot meet its payment obligations. This is something we can help you to create as it is crucial that the guarantee is properly drafted and some consideration between the parties to make it effective or the document needs to be signed as a deed. Sometimes the guarantor will need to ensure proper independent legal advice has been sought to ensure that the agreement is binding.
A fixed charge can be secured against a particular asset, most commonly land or property. It is advisable to seek the advice of a solicitor on the mechanics of drafting the charge and registering it against the property at the Land Registry. Mortgage charges already in place may mean that you need to seek lenders consent to the additional charge. A fixed charge will prevent the debtor from disposing of the asset without your consent and will entitle you to claim a proportion of the proceeds of the sale.
Floating charges are taken over a shifting pool of assets. This pool is liable to change throughout the course of business. It does mean that the assets can be disposed of without the consent of the charge holder. The floating charge will become a fixed charge upon default and you can then look to sell the assets. The risk here is that there may be no assets left in the pool. Floating charges are not the preferred choice, but can be suitable if a debtor does not own any high-value assets on which a fixed charge could be applied.
If your business has suffered loss due to the virus, you should begin reviewing your insurance cover. If you have “business interruption insurance” you will need to act quickly. This is something our team are able to help you do.
There are of course more extreme measures, such as debt recovery. However, given the current climate, this is something we are all keen to avoid, we are here to help you should you need any advice during this time just click here.