Proof of Life – sounds like the title of a Thriller movie!

Proof of Life – sounds like the title of a Thriller movie! In fact it is a Notary Thing. Louise Morley Explains …

Here at AtkinsonNotary we see many clients who have foreign pensions and have been requested by the foreign jurisdiction to produce a “proof of life” certificate duly notarised.

What this means is that the Notary is confirming that the client is still alive and is able to carry on claiming his/her pension.

The main reason for the Pension trustees to require this is that there are fraudsters in the world who could quite possibly take on the identity of a deceased person who had been collecting a pension and carry on claiming after the rightful beneficiary’s death.

This is obviously wrong but unfortunately there are fraudsters in this world! Who knew?

So the process is that a “proof of life” has to be issued – depending on the foreign jurisdiction this can be requested once every three months, once every six months or even once a year.

Don’t worry though – if you need a Proof of Life certificate then the process to see the Notary is very simple – an appointment can be made very easily and you would need to attend with identification documents. The Notary will then check your identification document and complete a certificate to warrant to the foreign jurisdiction that you are alive and still entitled to collect your pension from England.

Here is a report from 2012 which refers to English pensions fraud. –Link Here-

It doesn’t seem that things have tightened up if these links are any guide –Link Here – – And Here-

But a swift Google search indicates what might be a record – a Japanese lady now 86 has been claiming her parents’’ pension for the past 50 years. Wow. -Link Here-
If you are a Pensions trustee, food for thought perhaps. Use a Notary and you may not be singing this song. –Link Here –

As ever, for documents for use around the world do contact me or Chris Atkinson here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

 

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………………….Before I Get Old.

Lasting Powers of Attorney v Court Appointment of Deputy.

I have already written more than one blog in which I seek to encourage the making of Powers of Attorney, specifically ”Lasting Powers”.

Those are the ones which remain in force after the person who made it might have lost their “mental capacity”, and with it the ability to look after themselves. To look after their own needs in terms of food, cleanliness, money management and so on. Sadly, we are all aware that there is the chance of terrible illness in older age, and the creation of a Lasting Power is a hope that arrangements can be put into place now, to take effect if the worst happens.

As I have explained, the overall supervisor of anyone who is appointed as an Attorney by one of these Deeds, is the Office of the Public Guardian. Created in 2007, it does the work previously done by the Court of Protection. Nowadays the labels “Guardianship Office” and Court of Protection seem to be interchangeable.

The Ministry of Justice and the Public Guardianship Office have been promoting their message – “Make a Lasting Power” – for years now. – LINK HERE -.

They make the point that a person who does not, but then later needs a specific carer for making financial decisions, would otherwise face the refusal of Banks and Care Homes and other parties to deal with anyone who had not applied for and obtained a Court Order.

The Court Order is an appointment of a suitable person as a “Deputy”. Part of the message of those encouraging the use of lasting Powers, is that the Deputyship alternative is slow and costly and difficult.

Presumably, on the basis of a shared assumption that fast and cheap and easy is a good thing.

Well, up to a point Lord Copper.

I was rather taken aback to read this week in several newspapers of a the stated views of Senior Judge Denzil Lush – until last year sitting at the Court of Protection. He says he would never sign his own Deed of Lasting Power of Attorney. – LINK HERE –

Although the present Lasting Power regime is subject to more scrutiny in its creation than the earlier “Enduring Power” still he says his view is based upon case after case of financial misuse by the appointed attorney.

In his stated view, the more onerous requirements of the Court regarding a deputyship application are a “Good Thing” – that a process which is “too easy” may well be “too dangerous”, and that the checks and restrictions imposed by the Court work entirely for the benefit of the person being cared for.

It is all so difficult. Who is right?

I think there may be a case for preferring the checks and balances the Court of Protection seeks to provide in appointment of a Deputy, where there are large values involved. If a person has millions of pounds, temptation to be dishonest can be high and anyway the patient can afford to pay the Court its fees.

But many of the elderly ill may have very little money and just need someone to be there for them, which is what the lasting power system may be easier to achieve.

And then again, the journalist Christopher Booker has often highlighted horrible failures of the Court and accused it of an obsessive secrecy and thoughtless siding with misguided social workers. An example, – LINK HERE -.

Judge Lush has perhaps based his opinion upon his experience of having to deal with case after case where the appointed Lasting Attorney has proven to be dishonest and greedy, stealing from the patient and putting the patient’s interests well below their own, if anywhere. And he is presumably right, that a Lasting Power in the hands of a crook, is a terrible thing and the damage it can enable the crook to achieve may be irreversible.

After all it was Judge Lush who heard the case of a man who charged his mother £400.00 for every visit he made to her care home – LINK HERE –

So his opinion is formed from first hand knowledge of the worst behaviour imaginable.

I suppose none of us know who we can really trust until trust is put to the test.

But whether the answer is truly that people should stop making Lasting Powers and instead rely upon the wisdom of the Court of Protection – what do you think? Toss a coin and make a wish?

Here’s the Song – LINK HERE –

As ever, for documents for use around the world do contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Punctuation. Potatoes. Million Pound Losses.

My Potato has 47 Bottoms today. I mean – My Father is 47 today.

So yes, punctuation.

The English language uses commas, but people who speak and write English seem to find it problematical. Doesn’t usually cost them millions, mind. But it sometimes does.

Sometime I think the correct use of punctuation is something we shy away from even when we know how to do it. There are people who don’t understand our pain in reading at the roadside “Steep Descent HGV’s Please Use Low Gear”. They say “Get a Life” if we say “HGV’s What?” – So we sometimes just wince internally.

But – Garages offering MOT’s. Shops selling DVD’s. Really?

“If you still persist in writing, “Good food at it’s best”, you deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”
― Lynne Truss, Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation.

Anyway, those chaps are apostrophes, back to the commas.

It’s teatime, so “Let’s Eat Mother”.

If I am correct when I write to Louise, “For Breakfast I like eggs, Louise” then presumably if I say “For breakfast I like eggs, toast and marmalade” I am writing to the toast and marmalade.

That is where the Oxford comma comes into its own, and the exception to the rule that a comma should not be written before the word “and”.

If I was in fact writing to say what I like for breakfast, I should write “For breakfast I like eggs, toast, and marmalade.”

But you knew that, of course.

In my continued quest to bring you news from years ago, here is a Canadian case – link here – where the Courts had to interpret the meaning of this clause.

“This Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”

What then happened was that, early in the term and well within the first five years, one party served a year’s notice to terminate.

The Court found that the notice was valid to terminate the contract.

Because, there was a comma before the word “unless”. It found that the comma operated to close the part of the sentence which dealt with five-year terms. It found that the comma acted as if to put parentheses around the whole of the wording relating to five years – so that it meant “This Agreement shall be effective from the date it is made and shall continue in force (for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms) unless and until terminated by one year prior notice in writing by either party.”

It was only when the appeal court was persuaded to read the French translation of the contract also used by the issuing Company when it dealt with parties in the French language Province of Quebec, that it overturned that decision.

The French text said
“Sous réserve des dispositions relatives à la résiliation du présent contrat, ce dernier prend effet à la date de signature. Il demeure en vigueur pour une période de cinq (5) ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq (5) années, à moins d’un préavis écrit de résiliation à l’autre partie un an avant l’expiration du contrat.”

And I have put those words into Google, and it has come up with a clearer translation that the actual English words used!

Clearly, in French text, the notice must be served one year before the contract would other expire/come up for renewal. So, no notice could be effective which expired within the first five years.

And if there had been no comma in the English text contract, that is what the English text would have meant.

But there was, so it didn’t!

As I said, that case is old news, ten years in fact. So lawyers around the world have learnt from it?

Not so much, if this case – Link here – from March 2017 is any guide. It’s the Oxford comma again, or rather the lack of it.

In this case a contract made it clear – or in fact, failed to make it clear – that no overtime money would be due to drivers for their work in:-

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
“(1) Agricultural produce
“(2) Meat and fish products
“(3) Perishable foods.”

The Drivers successfully sued for overtime for time spent in distribution. That is, for the time spent in driving their Lorries. [As opposed to merely the time spent in packing for distribution. Which is, loading their Lorries.]

They were successful because there was no Oxford comma in front of the word “or”.

No overtime would have been payable, of course, if the clause had said
“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of:
“(1) Agricultural produce
“(2) Meat and fish products
“(3) Perishable foods.”

The cost of the missing comma is believed to be in the region of US$10 million.

Moral for Lawyers? Use lists, and where necessary the Oxford comma by all means in your legal drafting, but perhaps, if you don’t understand how they work, then don’t.

Excluding Greengrocers, obviously. You can carry on.

And truly, I did once meet a client who left me a self-addressed envelope for the return of his papers.

According to him, he lives in Leed’s.

And, turns out, he has a fruit and veg. shop.

And my Potato? That’s Spanish. The Spanish for “My father is 47 today” is apparently “Mi papá tiene 47 años hoy”

Contrast and compare – “Mi papa tiene 47 anos hoy”.

Can that be true?

Only one song will do – Link Here –

As ever, for documents for use around the world do contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

What’s in a Name? Betty When You Call Me, You Can Call Me Al.

What’s in a Name? Betty When You Call Me, You Can Call Me Al.

(c) Universal Publishing Group

What’s in a Name? So, His name is Paul Simon – but he says to Betty, she can call him Al.

In England, if we want to, we can wake up in the morning and decide what our new name is. And tomorrow something new. [Maybe we have a friend who is Eric in the week and Gloria at the weekends?]

Anyway, my point is, we have a freedom to change our names. Of course, this can baffle computers and the tax man, and the systems which surround us all depending upon names and passwords.

The Banks won’t give you back your money, not if you paid it in when you were Mr. A and now you are Mr. B and tomorrow Mr. C. So by and large most people in England stick with the name they were given at birth.

Or if they do change their names, they tend to document the change by creating a written Change of Name Deed often called a Deed Poll. Except, illogically, after marriage. I suppose that, because it is so normal in Britain that a bride changes her surname to that of the groom, no deed poll is usually considered necessary.

And to digress, yesterday was a first for me, when a client asked me to prepare and notarise a Deed Poll changing her surname to that of her partner because as she said, “It’s a lot cheaper than getting married”. Logical thinking, but really? Wow.

(I did advise her that she and her partner should make wills. They may have the same surname now, but they are not married and after death the law will not treat them as a special case.)

But even when we don’t change our names, we still treat them rather casually.

James Smith is likely Jim Smith. Howard John Bloggs is likely John Bloggs.

I am Christopher Hugh Patrick Atkinson – just call me Christopher Hugh Patrick. No, seriously, call me Chris.

And what of the little boy named James James Morrison Morrison Weatherby George Dupree, in AA Milne’s poem Disobedience? By the end of the poem, we have given up, and just call him “J.J.M.M.W.G. Du. P.” for short!  Link Here.

Even if you are a previous President of the USA and named George Walker Bush, it seems everyone will call you George W. Bush. At best.

So what’s my point?

It is to draw your attention to the issues that can arise from all this.

I have lost count of the number of times I am presented with University Degrees to notarise, where the University has not written the full name of the successful candidate. After you’ve been studying there for three or four years and paying all the fees, still they haven’t written your full name? Unbelievable.

So this week the Consulate of the People’s Republic of China is rejecting all documentation submitted to it which shows the slightest discrepancy in the ways in which the applicant’s name is written.

For example, in my case alone – and this is happening to all the applications received there – rejections include a man wishing to marry in China and a second man wishing to live in China to take up a teaching post there.

In the marriage case, his Register Office certificate of freedom to marry includes all his names as per his birth certificate. For no known reason, his passport has omitted one of his forenames. Result – Rejection.

In the teaching case, the man’s university degree has omitted one of his forenames which but that is included in his passport name. Result – Rejection.

If this happens to you, then like Bob the Builder, I can fix it.

But I cannot fix the loss of money, in wedding postponement, in delay in taking up employment, lost flights, nor the general frustration and waste of time.

The moral may be, from now on, treat your name as you would your email address. We all understand that an email must be precise and always the same. Otherwise it won’t work. So check your birth certificate against your passport and your names on Bank accounts and share certificates and degrees and driving licence and everything you have. And if you see discrepancies, missed names, alternative spellings, whatever, get it all sorted out.  It may save you a lot of wasted time and money if you do.

And just to add, it’s a whole other story if this sort of discrepancy becomes apparent after someone has died. And sometimes, even Bob can’t fix that for the disappointed beneficiaries and dependents.

Here is the song Link Here

So, for PR China problems, or as ever, for documents for use around the world do contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

 

Working in Australia – or Anywhere!  – A Blog From Louise at AtkinsonNotary

Working in Australia – or Anywhere!  – A Blog From Louise at AtkinsonNotary

We are increasingly seeing many professional clients who are intending either to work in Australia permanently – or just wanting to take a bit of time out from the English weather to work in sunny Australia for a year or two.

Typically these are Medicos – nurses, doctors and dentists – whose skills are in demand down under.

As part of the application process the Australians require various documents to be notarised – this usually consists of educational certificates, identification documents and can also include the Australian “EPIC Identification form”

What the Australians are requiring us to do is basically see original documents which the Australia require in support of the client’s application and also make our own identity checks of the individual.

After seeing the originals documents the process is that we would at that stage take and notarise as true and complete, individual photocopies of each certificate.

It should also be noted that Australia does have very specific wording when it comes to what they want the notary to say – this includes the word “sighted” – for example the usual notarisation would be “I certify that I have sighted the original document and this is a true copy of it”.

You will note from the notarisation wording that we are not required to say that the original certificate is genuine – the reason for this is that, for clients who are emigrating for medical jobs Australia has its own process in place to verify that the original certificates are actually genuine.

Each country is different in their Notarial requirements.

For example UAE insist that we check that any educational certificate(s) are genuine.

This entails us contacting the college/university that has issued the certificates in order verify authenticity – In fact most countries of the world require the Notary to verify the certificates.

However if in doubt you can ask the foreign jurisdiction whether they require the Notary to verify – if as is often the case you are unable to obtain a clear and concise answer from the foreign adviser then the “belt and braces” approach is to ask us to verify.

So if you are planning on working in Australia then we have the certificates [it is indeed very concerning, to see how many UK trained doctors are leaving here]

In fact if you are planning on working anywhere in the world then we have the certificates for you.

If you require any further information then please do contact me at this office on 0113 816 0116 or by email louise@atkinsonnotary.com – I would be very happy to assist in any way possible.

Wills by Text? Legacies by Voicemail?

Wills by Text? Legacies by Voicemail?

Apparently, Wills written on paper, signed by the Testator and two witnesses and dated, is all a bit last century.

Here is a link to a recent article in the Daily Telegraph –Link Here –

With the headline “Could a Text become your Will?” the newspaper is referring to a newly released report of the Law Commission.

According to the Telegraph, the Commission calls for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will.

The Law Commission has been set the task of considering whether the modern rules of will making in 2017 should remain the same as those which have been in place since 1837.

The reactionary response would be, why change what works? The revisionist response would be, Yebbut, is it working though innit? [Revisionists speak like that, I feel sure]

The fact is that whilst most people in England would probably agree that making a Will is important and something that they should do, in fact less than half of the adult population has done so. Should the making of a will therefore be “easier” than it is at present?

The link to the Law Commission report is here – Link Here – at first glance the newspaper report seems alarmist. Do a word-search [control;+F] through the report and there is no specific mention of email or text as being the suggested basis of a valid will.

There is no specific recommendation that the creation of a valid will made in England should in future abandon the use of pen and paper and witnesses, in favour of a quick text.

Rather, the report seeks to recognise that the true purpose of the law should be to ensure that the wishes of a person making a will can be put into effect after death, even if some oversight has been made in the formalities of the will.

It says, the rules about making wills, are a “means to an end, not an end in themselves”.

So, if someone has made it very clear what their wishes are, does it truly matter whether the record is on paper or hard disc or Facebook? Thus the Commission seems to recommend that in such a case, the absence of an actual paper Will should not stop a Court form being able to operate a “dispensing power” in order to ensure that those wishes come into effect.

My own view is that whilst the Law Commission is not recommending that Wills should no longer be on paper, there is a big risk here. The Law of Unintended Consequences. Or in other words, most changes make stuff worse. You can quote me on that.

In this case I predict the thinking will be “if the Courts are to be give a dispensing power, why go to the expense of making a “proper” Will?”

And Cynics will say, there is nobody as inventive as a disappointed person left out of an inheritance, trying to find a basis for a court case.

The report itself admits that an earlier report from 1980 which considered relaxing the rules, in the end decided against doing so, reaching the conclusion that this could lead to “more expense, litigation and delay in cases where it can least be afforded, noting that the homemade wills are the ones which most often go wrong.”

More expense delay and litigation? Seems to me that as soon as there is a chink in the armour, just as soon as there is even a notion in the mind of a disappointed non-beneficiary that the Court might deem an email or an unprinted computer document or diary entry to be sufficient evidence of intent as to amount to a legal Will, here comes argument and there goes certainty.

And when certainty is out of the window, litigation lawyers make money! See the Bleak House Jarndyce v Jarndyce extract below*.

And this even this new report does articulate [and then argues against!] the thoughts which most lawyers will have had upon first reading the Telegraph article, – it says, I paraphrase “the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives  … who may be tempted to sift through huge volumes of texts emails and other records trying to find one to put forward as a record of intent – as a Will”.

You really think so, Sherlock?

Here is a link to be downloaded at the foot of this internet page  – Link Here – a response form which you can complete then print and post, or email.

You have until 10th November to tell the Commission your own view.

Link Here –Put It In Writing – (It’s a song)

And as always, please do remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

* “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”

Charles Dickens

Never A Dull Day in Leeds. Duller Than Colombia, Mind.

Notaries in England have a role which is really Clerical at base. We establish facts, and we prepare Certificates in which those facts are set out as genuine. Our Certificates are then relied upon in foreign Countries.

In other countries, the role of the Notary is often wider than this.

A Notary in France acts in a way similar to that of the English Land Registry. S/He records local land ownerships and the transfer of land and in many areas actually stores the title deeds.

In areas of Spain, the Notary can act as a small claims court, hearing disputes and issuing legally enforceable judgments.

In many Countries and in some States of USA, a Notary can officiate at a Wedding.

But it is a new one on me, to read of a Notary actually seeking to change the Law, by Notarial certificate.

If this newspaper article is to be believed – link here- a Notary in Colombia has done just that. He has by his certificated paperwork, cleared the way for a marriage between three parties, all of them male.

Crikey.

In reality it seems to me that the Notary, who is mentioned many times on the internet as an active advocate for gay rights in Colombia, is being somewhat provocative or challenging to the government there. Of course some newspapers have picked up this action and described it as the first “three-way Gay Marriage”.

If this were really what the Notary has achieved, he has apparently wielded power more usually the preserve of an elected government.

And, opened the door to a new jurisprudence, with a lot more new questions than answers.

The Laws and Courts of most Countries, certainly in England, have been battling with matters of entitlement to assets on the breakdown of two-party heterosexual marriages for hundreds of years and there is still no consensus that any fixed and reliable resolution has been reached.

Imagine the scope for new esoteric argument about money and property and children when a breakup could be potentially three way, or one partner leaving the other two.

The reality is perhaps less extreme: it may be that the Colombian Notarial documentation is more akin to a “Pre-Nup” – a form of contract in which the three men set out the terms of their relationship in regard to ownership of property and dealing with matters such as maintenance or inheritance in the case of a future separation or death. [Bit like a partnership agreement between a firm of Solicitors? Only a bit, mind]

But headlines no doubt sell newspapers.

At any rate, Colombian Notarisations do seem to be a bit more sensational than my quotidian existence here in Leeds.

CONSENT TO TRAVEL – What is a Child?

I can perhaps also use my Blog this week to underline one point which may not occur to parents of young persons travelling abroad.

Louise and I have written on many occasions, and will do again, to bring home to our clients the need for notarised certificates of consent when children are to travel with grandparents or other adults, but not with both parents.

What we have perhaps not stressed, is what is a “Child”.

The reality is that there is no agreed international definition of the age at which adulthood is reached. We have this week noted the need to certify parental consent on behalf of a twenty year old “child” to travel alone – for the United States, where the age of adulthood in many States is still TWENTY ONE.

[Imagine how a man of twenty would feel, when he can’t get on an aeroplane because he hasn’t got a notarised “note from his Mummy”.]

Ok, here’s a song for this week Link here

As ever, please do remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com