Solicitors in Essex, Colchester, Chelmsford, London – Fisher Jones Greenwood https://www.fjg.co.uk Thu, 18 Apr 2019 12:02:08 +0000 en-GB hourly 1 https://wordpress.org/?v=5.1.1 Are Debenhams stores closing? https://www.fjg.co.uk/blog/2019/04/16/are-debenhams-stores-closing https://www.fjg.co.uk/blog/2019/04/16/are-debenhams-stores-closing#respond Tue, 16 Apr 2019 08:14:05 +0000 https://www.fjg.co.uk/?p=13571 Retail giant Debenhams went into pre-packed administration on 9th April 2019. They were...

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Retail giant Debenhams went into pre-packed administration on 9th April 2019. They were also taken over by lenders as part of the administration process.

Mike Ashley (founder of Sports Direct) called the takeover a “national scandal” asking for the administration process to be reversed. So, are Debenhams stores closing?

What happened to Debenhams?

Debenhams’ roots can be traced back to 1778 when William Clark began trading in London, later joined by William Debenham in 1813, becoming Clark & Debenham. Debenhams was incorporated in 1905 and was first listed on the London Stock Exchange in 1928. They eventually went on to becoming the biggest department store chain in the UK with 166 stores.

Debenhams first announced store closures following its largest loss in its history (£491 million pre-tax). It went through pre-pack administration which allows a company to sell itself as a going concern without affecting the operation of the business.

Sports Direct (Debenhams’ largest shareholder, owning approximately 29% of its issued share capital) put forward a few proposals (including loans and/or a possible takeover bid) and two offers to finance Debenhams. One of £40 million in December 2018 and a subsequent offer of £150 million in March 2019, with a requirement that Mike Ashley be made chief executive.  However, on 09 April 2019 Debenhams rejected financial backing from Sports Direct; control of Debenhams passed to its lenders- i.e. Barclays and US hedge funds (such as Silver Point and Golden Tree) bought Debenhams and provided the group with £200 million in funding.

The pre-pack administration left the equity holders with no value for their investment. This included Mike Ashley who invested approximately £150 million in Debenhams.

Why?

With the increasing popularity of online retail, the High Street environment has been a tough trade. This has left Debenhams, and other retailers, suffering the consequences and being forced into restructuring deals with their landlords / creditors. Last year, well-known names such as Maplin, Toys R Us and Poundworld went into administration and have now disappeared altogether.

In addition to online-retail, other factors have contributed to the decline of High Street retailers including higher business rates, and rising labour costs; as well as the lack of ability to adapt to the changes in the retail environment (or a slow reaction).

It is believed that Debenhams’ current financial issues stem partly from a period at the beginning of the millennium; this was when Debenhams were acquired by a private association (CVC, Merril Lynch and TPG) and were taken off the London Stock Exchange from 2003 until 2006.  It is also believed that the private association sold off freehold property and entered into a lease-back deal (which freed capital but locked Debenhams in to a long-term lease with rent-reviews going upwards-only), which added debts and paid themselves large dividends.

What happens next?

Debenhams’ debt is £621 million. Stores will continue trading during the initial phase of the restructuring. It is suggested that store closures (approx. 50 stores out of 166) will begin next year; but no list of which stores will be closed has yet been provided. In the meantime, Debenhams has been re-negotiating rents with landlords to address its funding issues.

Debenhams’ restructuring plans continue. If approved, they would “result in a significant overall reduction in the group’s rent burden and underpin a sustainable future”.

Sports Direct is still keen to acquire Debenhams from its owners and it has formally registered its interest. However, it is believed that Debenhams’ lenders might already have an alternative plan in place.

The Corporate Commercial Department here at Fisher Jones Greenwood LLP can certainly assist you with internal restructures, sale of business, acquisitions and/or any other related services; as well as assist you with the preparation of any documentation required and guide you through the transaction.

Should you require any information or assistance do not hesitate to get in touch. Please call 01206 700113 or email contact@fjg.co.uk

 

Source: BBC news, Financial Times and Wikipedia.

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What would it take for you to challenge a Will? https://www.fjg.co.uk/blog/2019/04/15/what-would-it-take-for-you-to-challenge-a-relatives-will https://www.fjg.co.uk/blog/2019/04/15/what-would-it-take-for-you-to-challenge-a-relatives-will#respond Mon, 15 Apr 2019 10:00:03 +0000 https://www.fjg.co.uk/?p=13555 According to a survey undertaken by Direct Line Life Insurance, one in four...

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According to a survey undertaken by Direct Line Life Insurance, one in four people will look to challenge the Will of a family member or loved one if they feel that their share of the inheritance is unfair.

Regional differences were rather stark, with those living in Southampton, Norwich and London being statistically more likely to initiate action. Whilst those living in Sheffield are seemingly more content with whatever they have been left.

It was noted that possible reasons for the 6% increase in caveats being lodged (which is the procedure you should follow if you want to bring a claim against an estate, as it stops anyone from receiving the Grant of Probate) is down to the rise in house values; meaning there is more at stake when dividing your wealth. We also live in a society where families with 2.1 children (as the expression used to go), are becoming increasingly uncommon. Families can often be fractured and complicated, which can lead to animosity from the outset of the probate procedure.

Challenging a Will

There are numerous grounds on which a Will can be contested, with the most common reason cited being ‘undue influence’. The burden of this argument is rather high on the person bringing the claim. This is because they have to prove that the individual was being coerced or pressured into preparing the Will in the manner in which it had been drafted.

The most successful ground however, according to this survey, was ‘lack of knowledge and approval’. This means the individual did not have complete and proper knowledge about the matters they were deciding; and further lacked the ability to be able to approve such instructions.

Bringing such a claim can be costly, as generally they have to be privately funded; although the monetary reward can potentially outweigh the risk factor. Increasingly, a lot of people are relying on their inheritance in order to get on the property ladder themselves; they therefore see it as an opportunity to better themselves financially.

Preventing someone from Challenging a Will

It is virtually impossible to prevent someone bringing a claim against your estate. There are however ways in which we can mitigate this risk; to cover such an event one solution is the preparation of letters to be stored alongside your Will. Jane Morgan from Direct Line Life Insurance commented “people can be surprised and hurt by the contents of a will, so people may wish to discuss with beneficiaries and those that might think they would inherit, how they plan to distribute their assets.”

We can discuss all of these aspects with you when you come and discuss the preparation of Will. It is important that you raise any such potential problems with us.

If you would like to discuss the preparation of a Will in further detail, or wish to discuss ways in which you can minimise the risk of a family member disputing your Will, then please contact our Wills, Life Planning Probate department; or call us on 01206 700113, or email us at contact@fjg.co.uk.

Likewise, if you’re considering contesting the Will of someone who has died, we can provide you with advice.  

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What are intra-group reorganisation? https://www.fjg.co.uk/blog/2019/04/15/what-are-intra-group-reorganisation https://www.fjg.co.uk/blog/2019/04/15/what-are-intra-group-reorganisation#respond Mon, 15 Apr 2019 05:00:16 +0000 https://www.fjg.co.uk/?p=13431 If you are part of a Group Company looking for ways to increase...

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If you are part of a Group Company looking for ways to increase business efficiency through and/or take advantage of available tax reliefs, intra-group reorganisations may be for you. This blog will briefly set out what intra-group reorganisations are and their benefits from an English law perspective.

What are they?

An intra-group reorganisation normally involves a transfer of subsidiaries or key assets for functioning of a business within the Group Company. It may also involve other connected transactions such as intra-group loans, dividends and issue of shares.

What are the benefits?

Some of the benefits available include, but are not limited to:

  • Tax advantages. It may be possible to rearrange cash flows to minimise tax costs and make the corporate structure more tax efficient in the long term. NB: You should seek independent financial advice from a registered accountant in relation to any tax advantages and/or reliefs available.
  • Increase business efficiency. Such re-organisation converting to a company operating in a divisional structure where each division conducts a separate business may reduce administrative costs; such as cross-charging and the preparation of subsidiary accounts. It may also improve the businesses financial performance by combining the financial performance of businesses previously conducted through separate subsidiaries.

Timeline?

It is open to you to carry out an intra-group reorganisation at any point. However, the most common circumstances are:

  • Pre-sale of a company or business reorganisation. This may benefit a company wishing to sell part but not all of its business-i.e. sale of a business division only.
  • Pre-acquisition of a company or business reorganisation. Ensures that the ‘new’ business will become a subsidiary to the ‘right’ holding company. Alternatively, you may be able to carry out a post-acquisition reorganisation. A PAR may involve the ‘new’ business being hived down into existing operating subsidiaries together with various assets transfers; i.e. land, intellectual property etc. A post-acquisition reorganisation may benefit from various tax reliefs applicable to intra-group transfers.

An intra-group reorganisation may be simple or complex depending on the existing structure of the Group Company, the desired structured to be achieved post-reorganisation, as well as the number of assets involved in the transaction. Other considerations prior to proceeding to the reorganisation may involve third party consents, company law issues, shared assets considerations etc.

The Corporate Commercial Department here at Fisher Jones Greenwood LLP can guide you through intra-group reorganisation; as well as assist you with the preparation of any documentation required.

Should you require any further information or assistance please do not hesitate to get in touch – call 01206 700113 or email contact@fjg.co.uk.

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Where there is a Will – but can it be found? https://www.fjg.co.uk/blog/2019/04/12/where-there-is-a-will-but-can-it-be-found https://www.fjg.co.uk/blog/2019/04/12/where-there-is-a-will-but-can-it-be-found#respond Fri, 12 Apr 2019 11:15:58 +0000 https://www.fjg.co.uk/?p=13529 It may seem an obvious point to make but when a person makes...

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It may seem an obvious point to make but when a person makes a Will they should always tell the Executors; these are the people who ensure that the terms of the Will are carried out. You should also consider telling immediate family where it (the Will) is.

The vast majority of our clients leave their Wills with us; and unless they tell us there is a good reason not to, we supply clients with copies of their Wills. We strongly urge them to keep the copies at home; and our copies certainly always state where the originals are kept. A lot of people have a financial folder or metal box or briefcase where they keep their important documents. It is sensible to tell the Executors where this can be found.

Lost Wills

Sometimes however Executors perhaps forget where the Clients have told them their documents are held; or perhaps the clients have moved the documents and not told anybody. The basic first step to take would be a thorough search of any residence of the Client. Wills have been known to be found in weird and wonderful places including airing cupboards and behind drawers in bedrooms.

We hold literally thousands of original Wills and do not unilaterally destroy them. One Executor was surprised recently to find that we still held a Will made nearly 60 years ago.

Once a Will is located, or if Executors or Family members have exhausted all avenues, then the Executors (or Family members depending on the circumstances) can begin to carry out their duties. We offer various levels of assistance to best suit the differing needs and wishes of Executors where there are Wills or Family members where there are not.

Copies of a Will

Sometimes only a copy of a Will can be located; but all is not necessarily lost as even a copy can be used. Although one question which is always asked, is whether the deceased Client destroyed the original but forgot copies had been supplied.

If an original Will cannot be located immediately there is a National Wills Register; but this is far from complete and may not yield results.

Ultimately if a Will cannot be found the Estate will be dealt with under the Intestacy Rules. This basically states where a person’s assets should be allocated; and often Families are surprised at what the Rules say. So if a person wants to make a Will to avoid the Rules, it makes sense to inform people where the original Will can be found. At a time of distress Families will not want to have to hunt for a Will, which may have been intended to have been made but in fact was not, and so a conversation between the Will Maker and Executors/Family members is always worthwhile.

If you would like to speak to one of our experienced Wills, Life Planning and Probate team about putting together your Will, please contact us, call 01206 700113 or email contact@fjg.co.uk.

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I am a Beneficiary of a Will – What happens now? https://www.fjg.co.uk/blog/2019/04/11/i-am-a-beneficiary-of-a-will-what-happens-now https://www.fjg.co.uk/blog/2019/04/11/i-am-a-beneficiary-of-a-will-what-happens-now#respond Thu, 11 Apr 2019 11:26:12 +0000 https://www.fjg.co.uk/?p=13427 There’s lots of information available about the importance of having a Will and...

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There’s lots of information available about the importance of having a Will and being able to control where your estate passes once you pass away. But this is only one side of Wills. What happens when the Will comes into effect on death? What do the beneficiaries of the Will need to do and what can they expect?

Below are a few of the terms used when administering an estate and carrying out the terms of a Will:

  • Executors: people in charge of ensuring the estate debts are settled and the terms of the Will are carried out. Executors are appointed by the person who made the Will; and will usually be stated within the first few paragraphs of the Will.
  • Beneficiary: these are the people in a Will who have been left something. This can be anything from treasured items to cash or property, and even land. It is the executors duty to ensure the beneficiaries received their gifts.
  • Legacy: is a term used to describe a defined gift in the Will. It is clear what the legacy consists of. For instance gift of £10,000 or a car. Legacies are paid out after debts of the estate have been settled but before the Residue is paid.
  • Residue: This is a term which means all of the assets of the estate after all debts have been paid (such as funeral costs, mortgages, bills etc); as well as after any legacies have been distributed. This can either pass to one person or can be split between numerous people in either percentages or shares. It does not specify set amounts like Legacies do.

Legacy Beneficiary (aka Legatee)

A Legatee will be informed by the Executors (or solicitors dealing with the estate if instructed) that they have been left a Legacy under the Will. Debts of the estate will be paid first so it’s unlikely that the beneficiary will receive their Legacy immediately. As a Legatee, you are not automatically entitled to see a copy of the Will straight away; it is also up to the Executor as to whether they give you a copy or not.

The Executors have a duty to the Legatee to make sure they get their legacy when possible; so you don’t need to worry if it takes a while to receive this. Often when solicitors are helping to deal with an estate the beneficiary will need to provide them with their ID to confirm their identity. Bankruptcy searches may also be carried out by the solicitors to ensure the beneficiary is entitled to the legacy. Once they are then in a position to distribute the legacy they will do so.

Residue Beneficiary (aka Residuary Beneficiary)

As a Residuary Beneficiary you may have to wait longer for your share in the estate. Residuary Beneficiaries will only be paid once all debts and legacies have been paid. All costs of administering the estate must be settled before any residue can be paid. Administration of an estate will vary depending on the assets; this could vary from months to over a year. If a solicitor is instructed they will be able to provide a rough idea of how long it will take.

At the beginning of administering the estate, if a solicitor is instructed then they may provide you with a copy of their terms of business and also a copy of the Will. As a Residuary Beneficiary you are entitled to see a copy of the Will from the start of the matter.

Much like the Legatees, Residuary Beneficiaries will also have to provide the solicitors administering the estate with their ID and the solicitors will carry out bankruptcy searches prior to making any distributions.

Although Residuary Beneficiaries are the last to be paid during the administration of an estate, depending on the size of the estate and the funds available, it may be possible for interim distributions to be made. However this is up to the Executors to decide.

Final Distributions

When the final distributions have then been made and the administration of the estate is completed, the solicitors may then provide you with a copy of the estate accounts which shows all of the assets and liabilities of the estate and the distributions that have been made.

As any type of beneficiary for a Will, there is not particularly much that you have to do and it is the Executors (or any solicitors instructed) job to ensure that you receive your Legacy or share of the Residue. It is not unusual for beneficiaries to ask for an update every now and then if they have not heard anything in respect of the administration of the estate.

If you have any questions in respect of the administration of an estate then please do contact someone in our Wills, Life Planning and Probate department who would be happy to advise where possible, call 01206 700113 or email contact@fjg.co.uk.

Alternatively all of our Essex offices hold a Wills and Probate clinic where we provide free general advice for 15 mins every Thursday morning between 10am and 1pm. No appointment necessary.

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You can’t predict the future but you can plan for it https://www.fjg.co.uk/blog/2019/04/11/you-cant-predict-the-future-but-you-can-plan-for-it https://www.fjg.co.uk/blog/2019/04/11/you-cant-predict-the-future-but-you-can-plan-for-it#respond Thu, 11 Apr 2019 09:00:56 +0000 https://www.fjg.co.uk/?p=12748 Thursday 11th April, 10am – 12pm. Join us for a free coffee &...

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Thursday 11th April, 10am – 12pm.

Join us for a free coffee & cake morning with questions and answers at The Beth Chatto Gardens, we discuss how to sow seeds today in order to reap the benefit later.

Opening talk by David Ward, Garden and Nursery Director at The Beth Chatto Gardens, where he has worked for over thirty-five years.

Followed by Susanne Grimwade and Andrea Godfrey, Solicitors at Fisher Jones Greenwood LLP, who will talk you through matters such as:

  • Inheritance Tax Planning explaining how to ensure that you, your loved ones or your parents should have financial security in their old age.
  • Lasting Powers of Attorney both for Finance & Property and Health & Welfare to help you understand what they are, why are they necessary, whether they apply to you and how to get one sorted.
  • Getting your affairs in order so that time spent on planning and paperwork today is a weight off your mind and leaves you free to enjoy life.

With a final talk by Kay Fisher, Independent Financial Advisor at Plan Money Ltd. Kay will go over some common financial questions and present an Equity Release Myth Buster.

Booking is essential. 

Click here to book: https://www.eventbrite.co.uk/e/you-cant-predict-the-future-but-you-can-plan-for-it-tickets-57095875300

You may have had difficulty booking this event from 6pm on the 2nd April to 3pm today (3rd April). Please be advised this issue is fixed and there are still limited tickets available. Sorry for any inconvenience caused.

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Partnership Agreements: why are they important? https://www.fjg.co.uk/blog/2019/04/10/partnership-agreements-why-are-they-important https://www.fjg.co.uk/blog/2019/04/10/partnership-agreements-why-are-they-important#respond Wed, 10 Apr 2019 08:53:01 +0000 https://www.fjg.co.uk/?p=13400 Are you are a partner in a partnership or are thinking about getting...

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Are you are a partner in a partnership or are thinking about getting involved in a partnership with somebody else? Either way, it’s very important to have a partnership agreement. If you already have one, it may be sensible to consider whether it should be updated; in order to ensure that it remains fully compliant and enforceable.

This blog will only address the importance of a partnership agreement from a general partnership’s perspective; not from a limited liability partnership’s perspective (LLPs). Whilst it is open to you to have a partnership agreement with an LLP, the partners of an LLP have limited liability. They are therefore afforded greater protection than the partners in a general partnership.

Partnerships are regulated by the Partnership Act 1890 (PA) which is the basis of today’s partnership law. The issue arising therefrom is that the PA does not cover all the ground required to be covered in setting up a partnership. Furthermore, as it came into force in 1890, some of its provisions are not appropriate for modern business life. It is therefore always advisable for partners to enter into a formal partnership agreement to regulate their operations and affairs.

A partnership agreement can cover extensive provisions; most of which may be more beneficial than relying on PA or general law – the table below provides a comparison:

Partnership Act 1890

Partnership Agreement

Duration

  • Fixed term with the partnership automatically dissolved at the expiration of the term; or
  • Indefinite term – partnership terminated at any time by notice given by any partner to the others
In addition to the indefinite term, you may add other circumstances when the partnership may be brought to an end, for example- conduct, incapacity etc

Capital / Profit & losses

The capital contributed to the partnership by the partners does not determine the share of net assets or capital to which they are entitled- partners are entitled to share equally in the capital and profits of partnership and must contribute equally towards the losses.

It is open to you to make provisions in the agreement as to the share that each partner is entitled to in the capital, profits, as well as contributions towards losses.

Partners may therefore prefer to link their initial contributions to their share entitlement in the profits.

Partnership Property

A partnership is not a separate legal entity (unlike a company) and cannot hold assets in its own name. The property is therefore held in the name of individual partners as trustees for the partnership. To provide certainty, you may add provisions in the agreement in relation to the partners holding the property as tenants in common, terms of occupation etc.

Accounts

There is no specific provision for the partnership to prepare accounts. It is important to make an express provision in the agreement for a balance sheet as well as profit and loss account to be drawn up in respect of each accounting period.

Relationship between the partners and outsiders

 

  • Partners may be jointly responsible for the contractual debts of the partnership.
  • The estate of the deceased partner has several liability for the debts of the firm to the extent that they are not otherwise satisfied.
  • Wrongful acts or omissions by a partner acting in the course of business may give rise to joint and several liability.
It is open to you to make provision in the agreement in relation to the terms of the relationship between the partners as well as outsiders.

Relationship between the partners

 

Certain terms are implied in the partnership agreement, for example:

  • Entitlement to share capital;
  • Obligation on the partnership to indemnify every partner;
  • Entitlement to interest on advances to the partnership;
  • Requirement that every partner takes part in the management.

These terms may be amended in a partnership agreement.

It is open to you to make provision in the agreement in relation to the terms of the relationship between the partners.

 

Admission of new partners

Unanimous consent is required for the admission of a new partner.

You can amend the requirement for unanimous consent by making a provision stating otherwise in the partnership agreement.

 

Other relevant provisions in a partnership agreement may also be for parental leave, retirement, and even death; as well as dissolution and winding up of the partnership.

A partnership agreement is a time and cost-efficient way of dealing with issues. They also provide a finite procedure and position should any such issues arise.

The Corporate Commercial Department here at FJG can assist you in drafting a partnership agreement, or advise you in relation to an existing partnership agreement; or otherwise advise you on your position at law generally.

Should you require any further information or assistance please do not hesitate to get in touch – call 01206 700113 or email contact@fjg.co.uk.

 

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Transfer of Equity and your Home https://www.fjg.co.uk/blog/2019/04/10/transfer-of-equity-and-your-home https://www.fjg.co.uk/blog/2019/04/10/transfer-of-equity-and-your-home#respond Wed, 10 Apr 2019 08:24:08 +0000 https://www.fjg.co.uk/?p=13395 What is A Transfer of Equity? A Transfer of Equity occurs when the...

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What is A Transfer of Equity?

A Transfer of Equity occurs when the legal owner of the property wishes to add or remove a party to or from the legal title of the property. If the property is owned in the sole name of a party and they marry, quite often the property is then transferred into joint names by way of a Transfer of Equity. If the property is owned jointly and they separate, the property may be transferred into the sole name of one of the owners by way of a Transfer of Equity.

Briefly the process of A Transfer of Equity is as follows:

  1. If the property to be transferred is subject to a mortgage, the first step is to make an application to the mortgage lender to either remove a party from the mortgage or to add a new party to the mortgage.
  2. If removing a party from the legal title, the mortgage company will need to consent to remove the party from the mortgage and their obligations in connection with the same.
  3. The acting conveyancer will prepare the necessary transfer deed taking into account any requirements of the mortgage company (if any) and any consideration (money) that may be being paid for the transaction.
  4. Some transfers of property are made by way of gift in that no money changes hands. If a party is being removed following a separation, there is likely to be consideration paid for the outgoing parties share in the property.
  5. The transfer will be sent to the parties/conveyancer for approval and once all agreed all parties will sign the deed and return to the acting conveyancer to arrange completion.
  6. Consideration as to any Stamp Duty Land Tax payable also needs to be applied. Stamp duty is calculated as follows:-
    • Half existing mortgage + consideration to other party = if the total is above the SDLT threshold, then stamp duty applies.

The process of the transfer generally takes about two to three weeks pending on how quick instructions are issued by the lender and the response of the outgoing parties conveyancer.

Beware that there are a few issues that can arise from a Transfer of Equity and it is important to seek legal advice to help combat these.

  1. Agreement on the consideration being applied to the transaction.
  2. If the transfer is a gift, possible indemnity insurance for transaction at undervalue.
  3. Calculation of any Stamp Duty Land Tax that applies to the transfer.

Moreover, a Solicitor can help home-owners looking to change the co-ownership of their property by preparing the necessary documentation to transfer the ownership of the legal title and guiding through the process to completion and subsequent registration at the Land Registry.

If you are thinking about transferring the equity in your home, please contact FJG’s experienced Conveyancing team, call 01206 700113 or email contact@fjg.co.uk.

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No Fault Divorce plans are unveiled https://www.fjg.co.uk/blog/2019/04/09/no-fault-divorce-plans-are-unveiled https://www.fjg.co.uk/blog/2019/04/09/no-fault-divorce-plans-are-unveiled#respond Tue, 09 Apr 2019 15:35:11 +0000 https://www.fjg.co.uk/?p=13392 Following many years of pressure by family lawyers the Government has announced plans...

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Following many years of pressure by family lawyers the Government has announced plans to end the need for fault-based divorce. These changes represent a radical social change to try and limit the blame and bitterness of marital breakdown. Justice Secretary David Gaulke said that the changes would help to ‘end the blame game’.

Currently, if the separation has been less than two years, the spouse petitioning for divorce is required to show that the marriage has irretrievably broken down for one of the following reasons:-

  1. Adultery by the other spouse
  2. Behaviour of the other spouse being unreasonable
  3. Desertion by the other spouse

Under the new proposals the spouse will simply have to show that the marriage has irretrievably broken down, without the need to blame.

Divorce proceedings where blame is required can increase stress and tension at a very difficult time. If this can be removed it will be of enormous benefit to separating couples and their children.

Furthermore, the ability of the spouse receiving the petition to contest the divorce is expected to be removed. Contested divorce proceedings are rare and are an expensive and time-consuming process generating further unpleasantness and ill feeling between the parties.

It is expected that the new legislation will also introduce a six month minimum period that must elapse between the time that the divorce petition is sent to the court and the divorce being final. This will give separating spouses time to reflect and decide on whether to continue with the divorce before the marriage is finally brought to an end.

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Who makes your medical decisions if you lack capacity? https://www.fjg.co.uk/blog/2019/04/09/who-makes-your-medical-decisions-if-you-lack-capacity https://www.fjg.co.uk/blog/2019/04/09/who-makes-your-medical-decisions-if-you-lack-capacity#respond Tue, 09 Apr 2019 15:34:31 +0000 https://www.fjg.co.uk/?p=13390 The recent case of DCC v NLH [2019] EWCOP 9 is an interesting...

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The recent case of DCC v NLH [2019] EWCOP 9 is an interesting case where the Court of Protection dealt with a matter where a person lacked the capacity to consent to DNA samples being taken.

The man (NLH) was in the latter stages of a condition known as Prion Disease.  The local authority wanted samples taken for a paternity test that was required in family proceedings in relation to NLH’s son.  The result would have enabled the possibility to be considered as to whether the child may have inherited NLH’s condition.

If, due to lack of capacity, a person is unable to consent to or make decisions on medical matters, then someone else can make those decisions on their behalf as long as there is a Lasting Power of Attorney for Health and Welfare in place (LPA) – however you have to have capacity to make a LPA.  If you do not have a valid LPA and lose mental capacity, then the only other way to obtain the right to make these decisions on someone’s behalf is to apply to the Court of Protection.

The application can be made to be appointed as a Deputy for that person in regards to all decision relating to their personal welfare (financial matters are a separate application) or for a specific decision to be made – as was the case here.

However in this case the Court criticised the parties because, before the application was finalised and permission granted, an employee of the testing company went to the Care home and took a sample with the consent of NLH’s family but without the consent of NLH himself.  The Court made it very clear that doctors could be criticised and potentially face a claim for damages as it may be considered a breach of human rights if they take bodily samples from people who lack capacity without a court order.

The Court of Protection are often called upon to make decisions on behalf of others.  Examples of cases over the last few weeks are:

  • An application that FG undergoes an operation to repair his shoulder fracture or dislocation. Sadly FG had a diagnosis of treatment resistant paranoid schizophrenia.  The NHS Trust considered it in his best interests to have sedation and anaesthesia for the operation to be done.
  • An application that PW who was a 60-year-old diabetic man (PW), undergo a leg amputation due to sepsis. He had been diagnosed with paranoid schizophrenia and lacked capacity.
  • The Court had to determine whether a 30 year old woman with learning disabilities had capacity to make various decisions including where she lives, consent to sexual relations and to use the internet and social media.

The Court of Protection consider each case on its separate application.  At FJG Solicitors, we have a dedicated team to assist with any Applications that need to be made to the Court of Protection as it is a very complex and sensitive area of law, call 01206 700113 or email contact@fjg.co.uk.

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