Month: April 2019

Enduring Powers of Attorney – All Your Questions Answered

/ Karen

 

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  

Parental Responsibility

/ Karen

parentalresponsibility1

Being a parent brings with it many joys and rewards, though most parents would agree that with these rewards comes a lifetime of responsibility.  
It is the job of both parents of a child to ensure that this responsibility is taken seriously and exercised in the best interests of their children.
What is Parental Responsibility?

Parental Responsibility is a legal term which reflects the rights parents in Northern Ireland have to be involved in making decisions in the best interests of their children.

Parental Responsibility is defined in the Children (Northern Ireland) Order 1995 as “all rights duties powers and responsibilities and authority which by law a parent has in relation to the child and his property”.

In practical terms what does Parental Responsibility mean?

In terms of education, for example, any parent with Parental Responsibility has the right to be involved in choosing their child’s school, to be notified of school events and to be sent copies of the child’s school reports. They may also provide consent with regards to what information is released about their child and having an input in regards to how their child is disciplined.

Parents with Parental Responsibility also have the right to give consent to medical treatment, to determine the child’s religion, to be involved in choosing their child’s name and to agree to any change of name.

In summary, Parental Responsibility provides you, as the child’s parent, with the right to make decisions in the following aspects of your child’s life:

  • providing a home for your child
  • protecting and maintaining your child
  • how your child is disciplined
  • choosing the school in which your child will be educate
  • determining the religious upbringing of your child
  • consenting to medical treatment of your child
  • providing or allowing any confidential information about your child which is requested to be disclosed

Having Parental Responsibility also includes the following: 

  • naming your child and agreeing to any change of your child’s name;
  • applying for a passport for your child;
  • accompanying your child outside of the UK and agreeing to your child’s emigration
  • being responsible for your child’s property, for instance if your child inherits property at an early age;
  • appointing a guardian for your child
Do all mothers have Parental Responsibility?

In Northern Ireland, every mother automatically has Parental Responsibility for their child.

Do all fathers have Parental Responsibility?

Fathers in Northern Ireland are often not aware that they do not necessarily have automatic Parental Responsibility over their child.

A father who is married to the mother at the time of the child’s birth will have automatic Parental Responsibility, as will a father who adopts a child.

How can I acquire Parental Responsibility for my child?

If you are a father who falls outside the above categories, you  can legally acquire Parental Responsibility after the birth of your child in a number of ways, for instance:

  • If your child was born after 1st December 2003, you acquire Parental Responsibility if your name has been put on your child’s birth certificate.
  • If you and the child’s mother enter a Parental Responsibility Agreement
  • If the Court makes a Parental Responsibility Orderin your favour

If the Court makes an order for the child to reside with the father, he will obtain Parental Responsibility by virtue of that order.

A stepfather may also acquire Parental Responsibility by applying to the Court for a Parental Responsibility Order.

What happens to Parental Responsibility if parents separate?

Both parents may continue to exercise Parental Responsibility following separation and are entitled to be involved in decisions about their children’s upbringing.

Sometimes parents with Parental Responsibility can disagree about how these rights are exercised.  If they cannot resolve this disagreement, they may apply to the Court which will decide the issue on the basis of what it considers to be the child’s best interests.

If you would like further information on Parental Responsibility, please feel free to email us here or leave your comments below

Protecting Yourself from Cyber-Scams when Buying a House

/ Karen

CALL CHECK CONFIRM MARCH 2019 from Paul O’Connor on Vimeo.

A new awareness campaign has been launched by the Law Society of NI aimed at reducing the threat posed by cyber-criminals targeting home-buyers, sellers, lenders and solicitors in Northern Ireland.

The ‘Call, Check and Confirm’, campaign provides guidance, information and recommended actions to all parties involved in a house sale or purchase.

The above short video has been produced by the Law Society of NI and highlights the various ways in which you can safeguard against falling victim to a cyber-criminal when buying a house.

For further information on buying and selling houses in NI, please feel free to contact us here or using the contact form below.

 

 

 

Making a Will

/ Karen

Wills2.jpg

We all know the saying, ‘Life is what happens when you’re busy making other plans’. However, with the hustle and bustle of everyday life, it is sometimes difficult to make any plans at all!

Few people would deny the sense in making a Will, and most of us have at one stage or another considered it, but many of us just don’t get round to the task. Everyday life seems to get in the way and besides, talking about death is a little depressing don’t you think?!

Why should I make a Will?

Well, there is nothing morbid about making a Will – you can rest assured that it does not hasten the event! In reality, taking a little time to plan how you would wish your assets to be distributed upon death and knowing that your family and children have been properly provided for as per your wishes goes some way to relieving the stresses and worries that many of us may have about death, particularly as we get older. Essentially, by making a Will, you control who inherits and how much of your estate each of your chosen beneficiaries receive.

What if I have not made a Will?

If you have not made a Will, then laws made many years ago (which many people feel are now outdated) direct who the recipients of your estate will be. In today’s world, the patterns of family life are much more diverse and a family may include the following:-

  • Children by more than one partner
  • Step-children
  • Long-term unmarried partners.

If you have not made a Will, these are all complicating factors. For example, if you are unmarried but have a long term partner and child together, your child will inherit your estate if you die without a Will and NOT your partner. Yet most unmarried couples would wish, and expect, that their partner would be first in line to inherit, and their child second. If married, your partner moves to first in line but does not necessarily take all of your estate. Therefore, if you wish to have the reassurance that each and every member of your family is accounted for upon your death, making a Will is the best option for you.

Planning ahead can save you money and heartache, and most importantly will ensure YOU are in control of what happens after your death.

For more information on how to make a Will, please feel free to contact us here or alternatively leave your details below. 

 

Legal Protection from Stalking and Harassment

/ Karen

binoculars

National Stalking Awareness Week 2019 runs this week from Monday 8th April 2019 to Friday 12th April 2019.

Many people associate the notion of stalking as something experienced only by those in the public eye – we read stories in the papers of a ‘crazed fan’ being found on a high-profile celebrity’s premises or trolling them online and sending unwanted messages. 

Many would not associate stalking with something that would happen to ordinary people in their in ordinary lives.   However, according to the National Stalking Helpline, approximately 45% of people who contact them are being stalked by people they have previously been in a relationship with, while a further one third will have had some prior acquaintance with their stalker.

What is the definition of stalking?

There is currently no legal definition of stalking, though it is generally seen as behaviour which is persistent and unwanted, and which causes the victim to feel frightened, anxious and distressed.  This persistent and unwanted behaviour can take many forms, including the following:-

  • Following, observing and spying on someone.
  • Non-consensual communication, such as repeated phone calls, emails, text messages, and unwanted gifts.
  • Showing up uninvited at the victim’s home school, or work.
  • Driving past the victim’s home or work.
  • Burglary or robbery or criminal damage of the victim’s home, workplace, vehicle or other property.
  • Threatening the victim, their family, or even pets with violence.
  • Harassment of people associated with the victim (e.g. family members, partner, work colleagues).
  • Physical and/ or sexual assault of the victim.
  • Cyber stalking – i.e. conduct or communication via electronic devices which are intended to distress or harass the victim – for example, sending or leaving unsolicited material/gifts, graffiti, and/or messages on social networking sites.
How can I protect myself if I am being stalked?

The law in Northern Ireland has remedies in place to protect anyone who is being stalked or harassed.

There are different options available for those who are being stalked by a family member and those being stalked by someone unknown or unrelated to them.

  1. Civil Injunction

The Protection from Harassment Order (NI) 1997 provides a victim with the ability to apply to the Court for a Civil Injunction against their stalker.  This remedy can be used where the victim and perpetrator are not related to one another via blood or marriage and indeed even if the perpetrator is not known to the victim.

A Civil Injunction, if granted, stops a person from harassing, assaulting, molesting or otherwise interfering with the victim, including restraining that person from being able to communicate or contact the victim and, in some cases, prohibiting them from being able to enter a certain property or area.

In order to make an application for a Civil Injunction, there must be evidence of two separate incidents of harassment.  It is therefore important that any incident of harassing or threatening behaviour is logged with the Police.

Civil Injunctions can be applied for on an emergency basis without the perpetrator being notified and dependant on a victim’s income, they may be entitled to Legal Aid assistance.

  1. Non-Molestation Order

Under the Family Homes and Domestic Violence Order (NI) 1998, if a victim and the perpetrator are deemed to be ‘associated persons’, then the victim has the option of applying for a Non-Molestation Order against the perpetrator.   In general terms, the parties are deemed to be ‘associated persons’ if they are family members, have lived together in a familial relationship or have a child together.

If a Non-Molestation Order is granted by the Court, the perpetrator cannot molest, harass, pester, use or threaten violence against the victim. It means that they cannot harass the victim directly (in person, by text, phone, email or social media) and they also cannot get someone else to harass them on their behalf.

The Court can also grant a victim an Occupation Order if they live with the perpetrator or if the perpetrator has some right to reside in their home (for example, if they are on the tenancy agreement or a joint owner). If the Court grants an Occupation Order, this means that the perpetrator they can be removed from the home and barred from returning to it.

The Court can also make an exclusion zone, excluding the perpetrator from a particular place, for example from the street in which the victim lives or the place they work.

Non-Molestation and Occupation Orders can be made on an emergency basis if there has been a recent incident of abuse (usually within the past 7 days). Some Legal Aid assistance is available to anyone applying for these Orders.

If you are the victim of stalking or harassment, you should contact the Police as soon as possible and report this behaviour and also seek legal advice on obtaining protection from the Courts.  There are organisations available to provide such support, such as the Domestic and Sexual Violence helpline (0808 8021414) Women’s Aid, the Men’s Advisory Project and The Rainbow Project.  With the help of the police, legal system and support services, you do not have to suffer in silence.  With the right advice and support, you can put an end to the harassment you are suffering and move forward to a happier and healthier life.

For further information on this area, please feel free to contact us here or leave your contact details below.