Enduring Powers of Attorney – All Your Questions Answered

 

elderclientNone of us like to think of the possibility as we grow older of getting too ill, either mentally or physically, to manage our property and finances ourselves.

We can all easily assume that, somehow, we will be able to manage our affairs throughout our lives – that we will always, for example, be physically capable of getting to the bank or post office to withdraw money or pay bills, or that we will always be mentally capable of understanding and signing documents connected to our property.
Whilst many of us will throughout life be able to look after our affairs as independently as ever, the sad truth of the matter is that for others, the ability to be physically or mentally capable of managing property or finances can be unexpectedly lost through accident, injury or the onset of illness such as dementia.

It is therefore reassuring to know that there are things that you can do to help you plan for the future should the worst happen.  You can plan for these possibilities by taking sensible precautions whilst you are mentally and physically capable of doing so.

 How? 

By executing a document known as an Enduring Power of Attorney (EPA)

So, what exactly is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Deed by which you can give authority to another person (your “Attorney”) to act on your behalf in relation to all or specified property and financial matters.

An EPA is not a Will.  A Will is only relevant after your death.  An Enduring Power of Attorney deals with the management of your property and finances when you are alive, but unwell.

Do I lose control when I sign an EPA?

By executing an EPA, you are potentially sharing control of your property and finances with your Attorney.

You can however state that the EPA is not to come into operation unless you become mentally incapable.   Some people prefer to keep the EPA restricted in this way.  Other people choose not to, as they wish their EPA to be effective if they remain mentally capable but become physically incapacitated and unable to manage their banking etc.  This is an important choice which should be carefully considered before executing an EPA.

Who should I appoint as my Attorney?

You can technically appoint anyone to be your Attorney however it is important that you ensure that you appoint someone that you trust completely, whether a family member, friend or professional advisor.   An EPA gives your Attorney complete control of your property and finances (unless restricted) and so you must be confident that your Attorney will have your best interests at heart.

It is also important that you discuss your intentions with any Attorney you intend to appoint as an Attorney must accept such an appointment, and sign the EPA form after you.

Can I have I have more than one Attorney?

Yes, indeed it is often practical to have more than one Attorney. If you choose to appoint more than one Attorney, you must decide whether they can act independently of each other or whether they must always act together.  This choice is not entirely straightforward you may need legal advice to guide you in this regard.

What Powers would my Attorney(s) have?

Subject to the terms of the particular EPA, an Attorney has wide authority to stand in the Donor’s shoes and make all decisions about your property, income and finances, which you could have made, with a few exceptions.

An Attorney cannot do the following:-

  • Make a Will for you
  • Sign an affidavit
  • Perform any act which you were authorized to do because of personal appointment, personal skill or a statutory direction.
  • Make medical or personal welfare decisions for you.
I don’t have assets or property of my own – is there any point in signing an EPA?

Regardless of whether you own property or have assets, someone will need to manage your pension or benefits if you cannot do so yourself. This will be made much easier with an EPA in place.

All of my assets are jointly owned with my spouse/partner – would I still need an EPA?

If it became necessary for your jointly owned house to be sold and you were not mentally capable of signing the deeds yourself, only a person with authority (such as an Attorney) can sign on your behalf.  One joint owner cannot sign deeds for all co-owners.

Often, joint bank accounts are frozen if a bank becomes concerned that one party is no longer capable and there is no EPA is in place. This can cause cash flow problems for all of the account holders. This can be avoided with an EPA.

What responsibilities would my Attorney have?

At all times, your Attorney must act in your best interests. Your Attorney must apply to register the EPA with the High Court if you have become or you are becoming mentally incapable of managing your financial affairs.  During the registration process, the authority given to your Attorney is effectively “on hold” until the process has been completed and the original Deed is issued bearing the court registration stamp.

Your Attorney is obliged to give you formal notice if steps are being taken to register your EPA.  As an added protection, your Attorney is also obliged to give notice to a number of your next of kin.  You, or family members notified can lodge an objection with the High Court, if you or they consider the registration of the EPA to be inappropriate.

Can I change my mind and revoke an EPA?

Yes, you can revoke an EPA while you remain mentally capable, and your EPA has not been used.  You should give notice of revocation to your Attorney.  However, once an EPA has been registered, it can only be revoked by the High Court.

If I recover my capacity, who is in charge of my affairs then?

There is a procedure to de-register an EPA which would allow you to resume control of your affairs yourself.  It would be important to seek legal advice to guide you on this process.

Is it expensive to make an EPA?

No. Legal costs are modest as the paperwork is not complicated once the important decisions have been made with professional help.  In fact, it would be much more expensive NOT to have an EPA should you have the misfortune to lose your capacity.

LJohnstonThis article was provided by LINDA JOHNSTON, Partner at FRANCIS HANNA & CO SOLICITORS.  Linda has a significant experience in the areas of FUTURE PLANNING.  For further information on this area of law, feel free to CONTACT US HERE AT LIFE LAW NI or contact Linda at lj@fhanna.co.uk  

Hitting the slopes this Ski Season? Ensure you’re Insured!

snow-mountains-winter-sportIt seems like only a moment has passed since Christmas yet here we are at mid-term break again. As the school break conveniently coincides with European ski season, many of us may take the opportunity to go ‘off piste’ by heading to the ski slopes for long weekend of snowboarding and après ski.

Whilst we do not wish put a damper on the fun and enjoyment gained from skiing, it is important to be aware if you are heading to the slopes this year that if you fail to take notice of standard safety rules and mountain etiquette whilst skiing, you could find yourself held liable for injuries that may be caused as a result.

Following Michael Schumacher’s accident in December 2013, there has been increased awareness of ski safety and much higher numbers wearing ski helmets.  Still, statistics from the Foreign & Commonwealth Office show that 40% of skiers and snowboarders have been injured at least once and almost one-third of those have suffered a significant injury, such as a broken leg.  It is one thing injuring yourself, but what if your actions cause injury to someone else?!

Deborah Evans, chief executive of the Association of Personal Injury Lawyer (APIL)* explains;   “Over-zealous skiers and snowboarders who put speed before safety and disregard standard rules, such as giving priority to skiers in front, risk causing serious injuries to others.”

Deborah has likened skiing collisions to road traffic accidents and calls for those travelling abroad to ski this season to ensure that they have the appropriate insurance cover in place;-

“Ignoring the rules of the mountain, like the road, could make you at fault if you collide with a fellow skier. Assuming you’ve taken out the appropriate winter sports cover, your insurer should cover the help and assistance the injured person needs, such as medical bills and repatriation if it happens abroad. That doesn’t alter that fact that you still will have caused unnecessary suffering which could have been avoided.

If you are in a collision, you need to treat it in the same way as you would if you were driving – call for help and swap insurance details”.

So before you pack the hats, boots and goggles (not to mention skis!) it is both sensible and advisable to ensure that you have the appropriate insurance over in place to protect yourself against any potential legal action in the event of an accident. And if you are injured as a result of someone else’s actions make sure that you get their details at the time of the accident.

For more information on this area, please feel free to contact us by email or alternatively please leave us your comments below
*APIL (Association of Personal Injury Lawyers) is a not-for-profit organisation whose members are dedicated to campaigning for improvements in the law to help people who are injured or become ill through no fault of their own.

LIFE BITE: Starbucks Employee wins Disability Discrimination case

apple-150579_1280The media reported yesterday that a dyslexic woman accused by her employer Starbucks of falsifying documents  has won a disability discrimination case against her employer.

A Tribunal found Meseret Kumulchew had been discriminated against after making mistakes due to her difficulties with reading, writing and telling the time.

Ms Kumulchew was a supervisor at a Starbucks in Clapham.  One of her job roles was to be responsible for taking the temperature of fridges and water at specific times and entering the results in a duty roster.   After mistakenly entering wrong information on the roster,  she was accused by Starbucks of falsifying documents.

Ms Kumulchew told the Tribunal that she had always made it known to her employer that she was dyslexic and claimed disability discrimination after she was accused of fraud.  The Tribunal found Starbucks had failed to make reasonable adjustments for Ms Kumulchew’s disability and had discriminated against her because of the effects of her dyslexia.   The level of compensation to be awarded to Ms Kumulchew has yet to be decided.

Discrimination happens when an employer treats one employee less favourably than others.  It could happen in a case like Ms  Kumulchew’s or in other instances – for example,  if a female employee is being paid less than a male colleague for doing the same job, or if an employee from a minority ethnic community being refused the training opportunities offered to other colleagues.

There are specific laws against some types of discrimination (called ‘unlawful discrimination’). If your employer treats you less favourably for an unlawful reason, you may be able to take action.

If you require legal advice relating to disability discrimination or if you feel you have been discriminated against by your employer in any other way, please contact us  mgavin@fhanna.co.uk or leave your comments confidentially below

Maternity & Paternity Leave: Your Rights

pregnancy.jpg

So your little bundle of joy has finally arrived and you are spending your days getting to grips with the general overwhelming feeling of being a new parent.  The last thing on your mind at the early stages of parenthood is how things at the office are going!

However, it is important that before you leave the working world to enter into the new world of dirty nappies and sleepless nights that both you and your partner are fully aware of your rights to maternity and paternity leave following the birth of your baby.

Here, we have answered some of the most popular questions from new parents regarding their entitlement to maternity/paternity leave:-

When can I start my maternity leave?

All mums-to-be can start their maternity leave any time from 11 weeks before the beginning of the week when their baby is due.  If your baby arrives early, your maternity leave will start the day after your baby is born and if you are absent from work as a result of a pregnancy-related illness in the 4 weeks before your baby is due, your maternity leave will start automatically.

Is maternity leave compulsory?

We are sure there aren’t very many women out there who would wish to get straight back to work following the birth of their baby, however for those who do, it is important to be aware that as a mother, it is compulsory to take 2 weeks off work following your baby’s birth – this is extended to 4 weeks if you work in a factory.

What is Statutory Maternity Leave?

Most new mums are entitled to take 26 weeks Ordinary Maternity Leave (which includes the 2 weeks compulsory maternity leave) and 26 weeks Additional Maternity Leave.  Therefore, in total, a mother can take up to a maximum of 52 weeks maternity leave which is known as Statutory Maternity Leave.

What will I be paid during Statutory Maternity Leave?

What you are paid during your period of statutory maternity leave will vary throughout the 52 weeks if you decide to take the full period of maternity leave. The minimum maternity pay you will receive for the first 6 weeks is 90% of your average earnings.  After that, presently you will be entitled to £139.58 per week or 90% of your average weekly earnings (before tax), whichever is lower.  This entitlement may end before the full 52 weeks is up.

Should you be lucky to work for an employer who offers over the statutory minimum then you may be paid more.

You can seek more information on whether you are entitled to statutory maternity leave and if so how much you are likely to be paid at https://www.gov.uk/pay-leave-for-parents

Is my job safe when I am on maternity leave?

Yes, when you are off on maternity leave, your employment terms and conditions are protected.  You will therefore still be able to access any work benefits which you may have as part of your employment contract.

If your employer makes contributions to a pension scheme on your behalf, they must continue to make these payments during your maternity leave.  Your entitlement to holidays will continue and you can add these days to the beginning or end of your maternity leave.

It is automatically unfair and discriminatory for your employer to dismiss you for a reason connected with your maternity leave or pregnancy. If you have been dismissed for this reason it is important to seek legal advice immediately.

Is every new mum entitled to Statutory Maternity Leave?

To qualify for Statutory Maternity Leave, you must satisfy two basic rules:

  • The ‘continuous employment’ rule – i.e. you have to have been working for your employer for a continuous period of 26 weeks into your ‘qualifying week’. Your qualifying week is the 15th week before the week in which your baby is due.
  • The ‘earnings’ rule – i.e. you have to have been earning, on average, an amount which equals the ‘lower earnings limit’ for that tax year.   The lower earnings limit is the amount you have to earn before you are treated as paying National Insurance contributions. In the 2014/2015 tax year the lower earnings limit was £112.00.

If you do not satisfy these rules, you may not be eligible to Statutory Maternity Leave so be sure to check with your employer whether you are eligible.

When should I tell my employer that I want to take Statutory Maternity Leave?

If you wish to take Statutory Maternity Leave, you must tell your employer at least 15 weeks before the beginning of the week your baby is due. If this is not possible (for example, because you didn’t realise you were pregnant), you should tell them as soon as possible.

What about Paternity Leave?

A new father is entitled to 2 weeks of paternity leave which is paid presently at a rate of £139.58 per week or 90% of their average weekly earnings, whichever is lower.

What is Shared Parental Leave?

From 5th April 2015, the Work and Families (NI) Act 2015 introduced shared parental leave and statutory shared parental pay to Northern Ireland.  This means that parents can share leave between themselves following the birth or adoption of a child.

In order to be eligible, you must have either given birth or adopted a child on or after 5th April 2015.  Parents now have the flexibility to share leave as long as the leave is taken between the baby’s birth and their first birthday or within a year of adoption.

Am I entitled to time off if I adopt a child?

If you adopt a child, you may have the right to 52 weeks of Statutory Adoption Leave.  This is made up of 26 weeks of Ordinary Adoption Leave followed by 26 weeks of Additional Adoption Leave.

To qualify for Statutory Adoption Leave, you must be an employee and be newly matched with a child by an adoption agency (‘matched’ means that the adoption agency gives you the details of the child they think is suitable for you to adopt).

What are ‘Keeping in Touch’ days?

Keeping In Touch (‘KIT’) days are days that you can work during your Statutory Maternity Leave without losing your statutory maternity pay, maternity allowance or ending your leave. During your maternity leave you are entitled to 10 days KIT days.  These days must be agreed between both you and your employer.  You are not permitted to work any KIT days during the first two weeks following the birth or adoption of a child.  If you agree to KIT days, then your employer should agree the amount you will be paid for each day.

It is important to realise that there is now more flexibility than ever before for parents of children to be able to share leave and return to the work force.  Should you have any queries regarding entitlement to leave surrounding maternity please contact us by email