Our very own Dr Nicholas Bevan’s profile is published in the New Law Journal ‘Movers and Shakers’, click here to check it out!
Our account of how, during the lockdown, a self-isolating client and a very effective local MP helped us trigger the most significant reform to will writing since 1677.
Published in the December issue of the Taunton Chamber of Commerce’ journal, Chambers Chatter, and reproduced here with the kind permission of the Taunton Chamber of Commerce at www.taunton-chamber.co.uk and DesignBean at www.designbean.co.uk.’
What is a Lasting Power of Attorney (LPA) and do I need one?
A Lasting Power of Attorney is a legal document in which you appoint one or more people (your attorneys) to help you either manage your financial affairs or to make decisions about your health and welfare. There are two separate forms, one for finance and the other for health. You can choose to have either one, or you can choose to have both, and if both you can have different attorneys for the separate forms or you can choose the same ones.
There is an important distinction between the two different types: the Health and Welfare only comes into effect when you are not capable of making your own decisions while, with the Financial Affairs one, you can choose to let your attorneys help you, even though you still have mental capacity. In either case they must always act in your best interest. Furthermore, with the financial one, they must let you make all the decisions yourself, if you have capacity, and not overrule you.
A Lasting Power of Attorney allows you to plan ahead for unforeseen contingencies. Illnesses and accidents can happen to anyone at any time and at any age and having a Lasting Power of Attorney in place provides you with peace of mind as it avoids the risk of incurring the substantial cost of making a formal application to the court, as well as sparing your loved ones much distress and uncertainly. It also enables you to stipulate who is to exert that power on your behalf in these circumstances.
Most of us assume that our next-of-kin already have authority to deal with such matters, but this is not the case. Even married couples need to ensure that either of them will be able to lawfully manage the other’s affairs in the event of physical or mental incapacity.
You will, at all times, retain the legal right to make your own decisions, good or bad, about your financial affairs and health and welfare even after you have a Lasting Power of Attorney in place; so long as you retain the mental capacity to take these decisions.
You can revoke your Lasting Power of Attorney at any time, as long as you have the capacity to do so.
Who should I appoint as my attorneys?
The short answer is that you should choose people you trust implicitly and, just as important, whom you already get along with. These can be friends or relatives. An attorney’s age, life experience and location should be considered.
If you appoint more than one attorney, which is something we usually recommend, then you will need to decide on their working relationship. You can appoint them jointly, in which case both attorneys have to be in agreement when making a decision or taking action on your behalf, or jointly and severally, which enables your attorneys to allocate their joint responsibilities between themselves. Each alternative has its benefits and potential drawbacks.
If you do not have any close friends or relatives that are able or willing to act in this role, you can appoint members of this firm to act as your attorneys. We have a capable team of professionals who are very experienced in this work.
We are also experienced in acting in collaboration with lay attorneys and our hourly charge rate is always set at a competitive rate. Our professional duty is always to act in our client- donor’s best interests, come what may.
Can a Lasting Power of Attorney be changed?
Yes. So long as you retain the requisite mental capacity to make your own decisions, you can revoke your Lasting Power of Attorney and prepare a new one, if you want, at any time. The rules that determine whether an individual has the requisite mental capacity to make their own decisions are extremely well thought through and set out in statute. Disputes on capacity are usually resolved by medical experts.
It does not matter whether the Lasting Power of Attorney has been registered or not, you can still cancel it.
Can a Lasting Power of Attorney be challenged?
Here at Broomhead & Saul we can arrange in appropriate cases for medical professionals to consider the issue of mental capacity in order to try to avoid any further arguments over this issue.
You also benefit from the fact that professionally trained and qualified solicitors have overseen the preparation and execution of the documents. When people make Lasting Power of Attorney themselves, they can be more open for challenge on grounds of undue influence and lack of capacity.
What is the difference between an Enduring Power of Attorney and a Lasting Power of Attorney?
An Enduring Power of Attorney signed before 1st October 2007 remains valid. However, this will only cover your property and financial affairs. Should you wish to give authority over your health and welfare matters you will need to make a health and welfare Lasting Power of Attorney.
This article was contributed by our Michael Fitzgerald, one of our rising star specialist probate lawyers.
For more information on LPAs please click here or to book an appointment at our Taunton or Ilminster office, please contact Andrew Lewis, Sue Baker, Mel Dodds or Michael Fitzgerald.
Dr Nicholas Bevan explains the benefits of distance wills for expats in his article, Video Wills, published in the December 2020 edition of French Property News.
Nicholas comments on the consequences of the reform that Broomhead & Saul initiated (together with the associated law firm Solicitors Title LLP): ‘ Until the end of January 2020, you can now make, amend or execute an English will without leaving your home, whether you live in the UK, France or anywhere else in the world. it has never been so easy.’ Nicholas’ ground breaking research indicates that a much broader concept of remotely executed video wills is fully consistent with the Wills Act 1837 and a consistent line of long established common law rules. Most law firms still do not offer their clients the video witnessing services we were first to devise and put into practice, despite our successful law reform campaign. As Nicholas says: ‘The problem here lies with the lawyers, not the law itself.’
Dr Nicholas Bevan has been invited by the nation’s leading law publisher, Lexis Nexis, to share his insights into the government’s emergency measure sanctioning the video witnessing of wills. Dr Bevan made legal history on 1 May when he executed the first video will in this jurisdiction before following this up with a successful law reform campaign that led to the passing of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020. Here is his promotional video. Nicholas is a partner at both Broomhead & Saul and its associated practice, Solicitors Title.
The prestigious New Law Journal, has just published another article by Dr Bevan. In ‘The video will execution regime: a half measure?, 30 October 2020, Nicholas argues that the Law Society missed a unique opportunity to persuade the government to assign to its members the role of administering the execution of wills from a distance, using video technology.
This would have enabled people who are particularly vulnerable to Covid-19, such as the elderly, to instruct their solicitor (over the internet) to sign their will in their name and then for the solicitor’s staff to witness and attest to this all in one single session, all managed from the solicitor’s office premises with the clients remaining in the safety of their homes.
In the article, Nicholas explains how the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 only explicitly sanctions the video witnessing of wills for two years from 31 January 2020. This secondary legislation was introduced in direct response to Dr Bevan’s initiative.
The limited scope of the Wills Act Order
Unfortunately, the Order is limited in its scope. It’s provisions necessitate at least two separate video sessions: the first being to witness the will signing; the second, to enable the testator to observe the witnesses’ attestation.
If the witnesses need to social-distance from one another, then the testator’s signed will needs to be posted out to each witness separately, with the testator being required to remotely attend both sessions. The result is an unnecessarily cumbrous, time consuming and costly exercise with the following attendant risks:(i) of the will being lost, delayed or damaged in the post (in up to six separate postings) and/or (ii) the witnesses learning of the dispositions and divulging this highly confidential information to third parties.
These limitations were unnecessary.
In several other common law jurisdictions, such as Canada and Australia, the legal professions there successfully persuaded their government to sanction the entire process of executing a will, remotely over the internet. In Ontario, for example, this is made conditional it being managed by legally qualified professionals.
A lost opportunity
Unfortunately, according to Nicholas, the Law Society in England misinformed both itself and its members of the correct legal position by insisting in its practice guidance that video witnessing was not a valid means of manifesting a witness’ presence, under the Wills Act. It failed to explain its reasons, when invited to do so. However, Nicholas’ own research revealed that the Law Society’s stance was badly misconceived. His research also indicated that there were sound grounds to believe that the use of video technology in this context was fully consistent with well established case law; a point which was later accepted by Lord Keen QC, as Advocate General, when responding to Nicholas’ paper on 19 June.
Unfortunately, the Law Society compounded its error, by first asking the government to dispense with the witnessing requirements altogether (just when the vulnerable and elderly appeared to be most at risk of undue influence or fraud, due to the need to self-isolate) and after its proposals were rejected, it appears to have asked the government to introduce inappropriate guidance to accompany the Wills Act Order’s provisions; these diminish its effectiveness.
Two alternative basis’s for video witnessing
Nicholas concludes by noting that the common law ‘clear line of sight’ principle (identified in Nicholas’ detailed research paper of 3 June 2020 and which was adopted as a central tenet by the government in its Guidance) is capable of accommodating a holistic online video wills service equivalent in scope to that enjoyed in the common law jurisdictions mentioned above.
Consequently, there are two concurrent video will execution regimes in force at present: a broader version that is informed by the well-established common law principles Dr Bevan identified but which remains uncertain as they have yet to be tested by a court, the other rendered temporarily explicit by the Order.
Richard James, partner at Broomhead & Saul, has been acknowledged in the 2021 edition of Legal 500 for his team’s work in advising the technology sector in the South West, in commercial contracts and on data protection issues.
Richard is singled out as having a particular expertise in MBOs, joint ventures, M&A and restructurings.
Legal 500 is an independent and internationally recognised directory of leading law firms and highly esteemed lawyers.
This demonstrates that Broomhead & Saul provide first rate commercial law services, of a quality one would expect from a big City of London firm, but accessible locally and at an affordable price.
On Tuesday6 October Dr Nicholas Bevan joined Darren Daley on the morning show at Tone FM. He explained the importance of making a will and how he challenged a widely held misconception that insists on a testamentary witness’s physical presence at a will signing and how his research and activism lead to an important reform to the Wills Act 1837. Listen here to the interview: https://tonefm.co.uk/listen/nicholas-bevan-from-broomhead-saul/
The sun was shining in the lovely historic market town of Ilminster on the morning of 17th September, and Broomhead & Saul, led by our colleagues at our Ilminster office were delighted to enjoy the good weather, whilst raising funds for Macmillan Cancer Support, by participating in the worlds biggest coffee morning.
With so many delicious treats on offer, no passer by could resist sampling the odd piece of chocolate cake, or lemon drizzle, especially for a good cause.
The event was a wonderful success raising just over £320.00, with the firms Partners contributing an additional £125.00, bringing the total to £440.00.
Broomhead & Saul would like to thank all of our bakers and contributors of treats, including Bonners Butchers of Ilminster, who very kindly supplied the prize for our Colin Conundrum, and of course everyone who stopped by to enjoy a coffee and piece of cake with us, to help support this fantastic Charity.
If you were unable to join us, but would still like to make a donation to Macmillan’s wonderful cause, then please follow the link below.
The Coronavirus Act 2020 (‘the Act’) was introduced to enable public bodies to respond to the Covid-19 pandemic. As a result of the Act, temporary amendments were made to Part 55 of the Civil Procedure Rules and the procedure for bringing possession claims against residential tenants. Initially, all residential possession claims were stayed i.e. cannot proceed any further for a period of 90 days, from 27 March 2020, until 25 June 2020. This stay was then extended until 23 August 2020 and then again until 20 September 2020. This meant that any new claims brought (‘issued’) at court during this period were automatically stayed, as were any existing claims already in the system.
The most noticeable changes to the process were as follows:-
Claims brought before 3 August 2020
For all claims that were brought (‘issued’) on or before 3 August 2020, one of the parties must (a) serve a ‘reactivation notice’ confirming that they wish the case to either be listed, relisted, heard or referred to a judge and (b) set out what knowledge they have of the effects of the Coronavirus pandemic on the Defendants (tenants).
New and stayed claims brought on or after 3 August 2020
For all claims brought on or after 3 August 2020, there is no requirement for an activation notice but at least 14 days prior to the hearing, the landlord must serve on the tenant a notice setting out what knowledge they have as to the effects of the coronavirus pandemic on the tenant and their dependents. For accelerated possession claims, this information must be served on the tenant with the claim form.
The purpose of these changes were to avoid anybody being evicted and losing their homes during the pandemic where the latter has had a detrimental effect to the financial circumstances of many people who may be struggling to pay rent and mortgage repayments. The effect of these changes will mean a significant backlog within the court system and an additional 200 deputy district judges have been drafted in to assist with the many claims that will need to be processed now that the stay has been lifted. It is hoped that court centres will be able to allocate the same number of courtrooms and days per week to possession proceedings as before March 2020.
Additional implications of the Act on Landlords – Notice of Possession
Prior to the Act, landlords were required to serve their tenants with at least two months’ written notice, in the ‘prescribed’ form, if they were seeking to claim a ‘no-fault’ eviction, pursuant to section 21 of the Housing Act 1988. Whilst the Act did not prevent landlords from serving notices, it initially implemented changes requiring a landlord to provide three months’ notice to tenants. From 29 August 2020, landlords will now be required to provide their tenants with six months’ notice terminating their residential tenancy agreement, before they can issue a claim. This temporary increase in notice period will be in place until at least 31 March 2021.
The guidance suggests that where tenants are having difficulties or are unable to pay their rent that landlords do not issue a notice seeking possession where their financial circumstances have been directly affected by the coronavirus pandemic.
There is, however, no requirement for landlords to stop charging rent during the pandemic as most tenants will be able to continue paying rent and will be contractually obliged to do so. If, therefore, you are a landlord that has a tenant who is not paying rent yet is financially able to do so, you may want to consider serving notice for possession sooner rather than later.
If you are a landlord of property housing residential tenants and would like to discuss your options in relation to the above, please contact Lucy Milton-Downes on 01823 288121 or firstname.lastname@example.org, as she would be happy to talk to you and is offering free-half hour no obligation telephone appointments.