People just won’t behave like they ought to. Who’d have Thought? EPAs and LPAs.

People just won’t behave like they ought to. Who’d have Thought? EPAs and LPAs.

As every computer programmer knows, once a piece of software is released into the public domain, it will be used by ordinary people in ways that the programmer had never even imagined.

The classic example of this is office workers years ago faced with a computer mouse for the first time, waving it in the general direction of the screen and hoping for something to occur. Dealing with people eh? Herding Cats.

This phenomenon – that the public simply won’t behave – has caused head scratching for all kinds of engineers, not least social engineers. As examples the original Communists – even the Hippies, People who try to re-engineer Societies, often base their theories on a belief that humans are basically mature people who left to their own devices will care for each other and contribute to the welfare of each other.

Yes humans love to care for the needy and make contributions for no personal gain don’t they! Good luck with that.

The subject of this blog is the legal framework in England set up for caring for the [usually elderly] people who are no longer able to care for themselves.

Usually because of loss, or partial loss, of mental capacity.

In England in 1985 the then new Enduring Powers of Attorney Act recognised the need for a framework. The Act created a new kind of Power of Attorney – one which lasted in effect, remained in force, even when the person who has signed it has subsequently lost mental capacity. The only previous sort of Power of Attorney was a much more commercial business-related document and would have been no use for a dementia patient because it would have expired just when loss of mental capacity occurred – which is when it was actually needed.

The law was proposed initially to enable a system of “light touch” regulation with regard to the care of such persons.

We have seen how well a “light touch” worked with Halifax Bank of Scotland regulation on 2007. [NB for those not in the know – it turned out badly!]

The position turned out to be much the same in relation to Enduring Powers of Attorney. [EPA]

The original assumption was that the Donor of a Power of Attorney would, being thoughtful for the future make an appointment in the name of an adult child or close friend to care for them when and if necessary to manage their finances but not their medical care.
Guess what, it turns out that in case after case, the pressure for the making of an EPA came from the children, often long after the Donor was actually able to understand what was going on.

Before too long the Courts and the Police began to hear of cases where people who had already lost capacity were shown to have signed documents which they did not understand, or alternatively which they were misled or threatened into signing in favour of unsuitable and uncaring family members or nurses or “friends” who then began to use the Enduring Power of Attorney as a licence to ransack the patients savings.

The law makers thought about this for a while and next came up with the Mental Capacity Act of 2005 .

It replaces the EPA with the present system which is a document of two parts called a Lasting Power of Attorney. [LPA]

One very significant difference in the new LPA is that a “Certificate Provider” is involved.

This is someone, often a Doctor, who will check the position and then sign a form to confirm that the Donor at the time of making the Power of Attorney still holds the necessary mental capacity to do so and is not being threatened.

The Mental Capacity Act also provides for scrutiny as to the subsequent behaviours of the named Attorney.

Recently we have seen such a safe guard in effect in the case of “SF” of 2015 published in October. You can read it on this link

In this case the Judge was moved to call the behaviour of the Attorney “callous and calculating”.

This was a case of an EPA rather than a LPA.

The son [who is a retired Accountancy adviser and Independent Financial Consultant], is the only son of the Patient. The Power of Attorney was signed in 2004 and was registered in 2009 when his mother lost mental capacity.

Subsequent to that the son has paid into his own account the sum of £117,289.45 of his mother’s money. This he justified to the court as being “out of pocket expenses”.

In a statement to the Court the son said “I am the sole heir of my mother and because of her dementia and current poor health there is really no need to protect her estate’s financial interest as they are effectively mine”

The Judge described this attitude as “repugnant” and in summary declared “one would be hard pressed to find a more callous and calculating Attorney who has so flagrantly abused his position of trust”

The telling point is the Attorney’s clear belief that his mother has turned vegetable and that her money is now his money. His take on the situation therefore could be paraphrased – “by her selfish refusal to die she is stealing the nursing home costs from me”!

I suspect that this mind-set is not unique to this particular case.

This is an example of the Powers of the Courts to disqualify the son from his position of Attorney because of his behaviour, in spite of the fact that his mother signed the Power with no duress and of her own free will.

Nevertheless, the sum of nearly £120,000.00 is now in his pocket. There is no mention in the judgement of repayment. Still less, of prison.

I wonder whether it is only my own opinion that there is a cause for concern about this case which gives some support to the arguments of those who are opposed to any relaxation on the rules of “Assisted Dying”.

Many of the proponents of the so called “Right To Die” say that when life becomes unbearable and the patient is unable to speak for him or herself then those closest [my italics] should have the choice of bringing that life to an end.

Is it not in fact a problem that it is those very people, – [“those closest to the patient”] who are often also closest to the patient’s money?

Perhaps those most likely to benefit financially from the death of the patient, should be the last people to have their views taken into account, as to when that death should happen? Just a thought.

Or perhaps most people are naturally caring and anxious to doing the right thing? Yes, right.

Here’s a tune.

If you would like to have your Company’s Notarial work done properly, including assisting with Foreign Powers of Attorney, do please get in touch – You can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com

English Notarisations for the USA. Don’t Get Lost There.

Notarisations for the USA. Don’t Get Lost There.

In the United States, there are Notaries Public. They are not lawyers and have no comparable status to the Notaries of the rest of the World so far as reliance upon their certificates is concerned. The only similarity between them and the Notaries of England is their naming.

I think it is usually understood in North America that the Notaries in England are not the same creature as their home-grown Notaries. This seems on occasion to give rise to an incorrect opinion that documents for use in the USA can only be notarised by a USA qualified Notary. This opinion is wrong wrong wrong.

Twice in the past year I have had clients who, needing to make applications to the Courts in New York, have been advised that an English Notary is not an acceptable certificate provider and that a US Notary must be found, or otherwise that the client must travel to London to the US Embassy which can do the job for them.

This belief seems to go hand in glove with the idea that England is really small and we can all pop round to Grosvenor Square in ten minutes.

A colleague Notary has noted this week that a Notarisation he has made for use in the States has been returned to the Client [who is now seeking her money back!] with a covering letter from her lawyers’’ office. The letter, signed by a “para-legal” trots out this untrue advice,-

“Ms. (Smith),

We are in receipt of your notarized Affidavit of Defendant. However, after review of your notary stamp we noticed you had this notarized in Woodbridge, a town in Suffolk, East Anglia, England.

As previously instructed, the court will only accept documents notarized by a United States Notary. You may have this done at the US Embassy.

Attached is another copy of your Affidavit of Defendant. Please sign and have notarized by a US Notary, and email back to us.

Please be further advised that the documents must be notarized by a United States authorized notary in order to be valid.

Thank you

Have a great day!

Regards,
xxxxxxx (ParaLegal)

Don’t you love the “have a great day” with its exclamation mark? I think that if my lawyer wrote to me setting out completely untrue bad news before signing off in that way, he wouldn’t be my Lawyer for long.

So let me nip this in the Bud.When the Paralegal submits the Affidavit to the New York Court it will certainly be accepted, in spite of his belief.

If ever there is the need to prove the law on the point, I have a written opinion of a New York Attorney General confirming the status of foreign Notarial certificates and, to resolve it once and for all, here is a link to guidance on the US Consular website. [The reference to a solicitor is incorrect of course, but hey]

The fact of the matter is that North America is so large, and most lawyers there act for English clients living in England so rarely, that myths of this sort can grow up. Bottom line, believe your English Notary.

And don’t get lost in America – link here

If you would like to have your American Notarial work done properly here in England, do please get in touch – You can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com

 

 

More Company Signings. Impossible – Maybe. Metaphysical – Definitely

More Company Signings. Impossible – Maybe. Metaphysical – Definitely

In my blog last month link here  I considered the Court Decision in the case of Hilmi – where a notice intended to be made by a Company which wanted to claim its right to purchase a freehold of its leasehold premises, was found by the Court to be defective.

The Notice was signed by a Director of the Company. However, it was held by the Court not to have been signed by the Company!

As the Judge remarked his task was to decide ”whether the Notice was, as required by Statute, one which was signed by the Company or was it only signed on behalf of the Company?

“In relation to a corporate entity which cannot itself hold a pen and apply it to a piece of paper, this may seem a somewhat metaphysical enquiry. But it is one which the law requires to be considered, on occasion, although perhaps only very rarely. This is such an occasion.”

Yes that old “Law / Metaphysics” conundrum.

So we have learned that a Company may have failed to sign a document which it certainly wished to sign, when it is signed by a Director alone.

So who’s for a recent case where a Company was held to have properly signed a document which it now wishes it hadn’t, when it was signed by one Director alone.

[Alice laughed. “There’s no use trying,” she said: “one can’t believe impossible things.”

“I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.]

The case of Bass Jarrington Ltd v The Royal Bank of Scotland plc [2014] WL 6633457 considered the ability of the Bank to claim the benefit of a Guarantee signed by one Director only. And what is more, that Director appears to have signed without the authority of the Board of the Company and in breach of his duty of good faith towards the Company

In this case, because the Guarantee was the sort of thing, executed in the sort of manner, that was usual in dealings between the Company and the Bank, and because there was no evidence that the Bank had any reason to believe that the Company had not considered the matter at Board level and had not authorised the signing Director to do so, the Court refused to declare that the Guarantee was void.

The result is a confirmation of the Court’s view that a Contract entered into by a DIRECTOR [not a non-Director employee however senior] will bind the Company to it provided of course that the third party is unaware of any irregularity.

I cannot reconcile these cases directly to each other, but the lesson of them for Directors is probably what you already suspected. Viz: – There is one way to get things right and there are many are more ways to get things wrong. And, you are more likely to get things right if you always adhere to a model of Good Practice.

In Hilmi, the Notice would have been valid if witnessed or better still signed by two or more Directors.

Similarly, in Bass, the Bank would not have been able to benefit from the Guarantee signed by one rogue Director if, in its relationship code with the Bank, the Company had specified that all contractual documents between them must bear the signature of at least two Directors.

So the one common thread seems to be:-

1 your Company’s important documents should always bear the signature of two or more Directors.

2 Your third party suppliers, Bankers, Clients etc should be told that they are asked to insist upon, and may only rely upon, documents and papers which have the signatures of two or more Directors.

Turning the thing around, it also follows that a Director is much safer, in his relationship with the Company and in respect of his own personal liability, if he only signs paper as one of two or more signatories and always with the protection of a minuted Board resolution to proceed with the particular transaction

Of course, most Directors and Companies are very busy and will consider they haven’t the time for all this administrative box ticking. Fine. But remember, just because you haven’t fallen through it yet, doesn’t mean you are skating on thick ice.

That’s enough impossible things to believe for today.

Except that there is a lion in the box link here

If you would like to have your Company’s Notarial work done properly, do please get in touch – You can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com

 

 

 

Working Abroad? – We have the Certificates! Louise Explains

Working Abroad – Australia, UAE, anywhere really – we have the Certificates!

Louise Morley explains.
Each year for several years now we have seen an increase in Notarisations of our clients’ Educational Certificates i.e Degree Certificates, Transcripts etc….

We have written previous Blogs about the two different Notarisations we can give on any such Certificate [see link here].

The main reason why we get asked to Notarise educational certificates is for clients who are wishing to work abroad – whether temporarily or permanently. The relevant authorities in that country require to see Notarised evidence of our clients’ educational certificates.

The purpose of a Notarial certificate is to confirm fact – and this might be either of
1 the Notarisation is to just confirm that “A” is a true copy of an original document “B” or
2 that the original document is itself genuine.

Either way, The Notary’s certificate can be relied upon.

These are different certifications, so the wording of the Notarial certificate reflects the action which the Notary has taken. Which one is appropriate, depends entirely upon the requirements of the country where the Notarised certificate is to be used.

There are other quirks which we will bear in mind for you. One example, for use in Australia, is the request that the Notary to use the word “sighted” in his certificate – i.e “I certify that this is a true copy of the original sighted by me” – if this word is not used then the likelihood is that the certificate would be rejected, even though in England the word is archaic and modern usage would be to use “seen”.

Here at AtkinsonNotary we endeavour to keep up with the requirements of the foreign jurisdictions and with Chris Atkinson’s now 22 years of experience in preparing Notarial documents we pride ourselves in getting the job done right the first time!

Having said that, we may need to see the same client more than once!

This is not because the documents submitted initially are no good [no, really] but because often your foreign adviser requests more Notarised documents after the event – this is annoying for clients, incurring additional fees and wasted time dealing with documents that could have been done all under one appointment thereby saving time and fees.

Our suggestion is that you always try to ascertain from your foreign adviser, before our first meeting, as much detail as possible as to what documents needs to be notarised – it might also save time if you have a few spares notarised in case more copies are required at a later date. This happens all the time!

If you do get a few additional copies notarised at the first meeting this is cheaper for you than making a later separate appointment after your Foreign contacts suddenly decide that they actually need five not three of everything!

If you, or someone you know is looking to work overseas and needs documents Notarising then please do get in touch and we can discuss further that particular country’s requirements.

And there you are, ready for a New Career In A New Town. Link Here

As ever, its notary@atkinsonnotary.com and http://www.atkinsonnotary.com or phone us 0113 8160116. Notarial Help and very good coffee always available.