Probate Money Grab – It’s Back On

Probate Money Grab – It’s Back On

I mentioned in –Link Here – this Blog the amazing Government proposal that the Court fee for issuing Probate should increase from today’s maximum – of £215 (£430 for a couple dying, one shortly after the other), – to £6000.00 (or £12,000.00 for a couple dying, one shortly after the other,)

 The figures above are actually less than was originally proposed. Not that that matters at all to the principle of the thing.

The work done by the Court in issuing a Grant of Probate typically is to check that a Solicitor or applicant in person has got the sums right, then to apply a stamp and presumably make an entry on a computer.

Time involved – what? – 30 minutes with a cup of coffee, less than that if it’s getting near to going home.

And this is the case WHATEVER THE VALUE OF THE ESTATE.

£430.00 is a bit high, that fee, isn’t it? The Government’s own figures confirm that the fee is well adequate to cover the cost of supplying the service. So, £12,000.00 per couple is clearly not a fee is it, it’s a tax.

In essence no difference to going into a shop for cigarettes and getting them free if you are on benefits and having to pay a made-up figure of hundreds of pounds (or however much the government feels like) if you have got a nice house.

Now is the time to write to your MP, if you think this is wrong. The reasons why you may think it is wrong might be
• because you believe that the estate of a person who has died has already suffered tax, because the income that was earned during life was subject to income tax, and that the same estate will be subject to Inheritance Tax, and that a third tax for Probate fees is one tax too many
• because you believe that a conservative government should support the idea of hard work generating capital which can pass from parent to child rather than be swiped in two separate ways on the parent’s death
• because if you voted conservative, you did not vote for this
• Because if you do wish to vote for politicians who are conservatives, but the ones in government behave like this, then there doesn’t seem to be any party you can actually vote for.

A much more articulate person than I is John Eaton, a Consultant Solicitor in Leeds, who has sent me a copy of his letter to his MP and with his consent the rest of this Blog is that letter. If you think he is wrong let me know. If you think he is right, maybe tell your MP. NOW, would be a good time!

Dear Philip

I apologise for bending your ear yet again with another tirade against this iniquitous, unfair and totally unjustifiable stealth tax, which the Government insist on describing (wrongly) as an “increase in fees” – but following the very disappointing outcome of the Parliamentary Committee meeting on Thursday this week (when the proposal was inexplicably passed by 9 votes to 8) it seems that the only way of preventing this regrettable and sordid little proposal from becoming law, will be for MPs to vote it down when the proposal comes before the Commons in the near future.

For this reason, and knowing that you also regard the levy of this tax as wrong and unjustified, I am hoping that you lay also be able to influence some of your fellow MPs to vote against the proposal when it is presented.

I am sure that you will be familiar with all the arguments against the proposal, and the total absence of any argument in favour of it, but just to re-cap briefly on three of the main arguments for voting against the proposal, as usefully summarised in the following explanation by the Law Society:

The Law Society’s key positions on the Non-Contentious Probate (Fees) Order 2018

• We believe the dramatic increase in fees amounts to a stealth tax. We agree with the conclusions of the Secondary Legislation Scrutiny Committee, the Joint Committee on Statutory Instruments, and the House of Lords that the scale of the fee increase is a misuse of the Lord Chancellor’s fee-levying power. (By way of additional comment from me: – to completely ignore the conclusions of those authoritative bodies is both unreasonable and arrogant in the extreme)

• The fee increase is disproportionate. The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive, particularly when compared to the current fee of £215 (or £155 if done by a solicitor).

• It is unfair to expect the bereaved to fund or subsidise other parts of the court and tribunal service, particularly in circumstances where they have no other options but to use the probate service.

For these reasons, the Law Society urges members of the Fourteenth Delegated Legislation Committee and other members of the House to object to the Order, and to vote against the motion to approve

Just to add to the above, I stress that the work for which the alleged ”fee” is charged, comprises about half an hour of pure administrative work – nearly all done by computer anyway, and which does not bear any relation to the size of the estate, nor does the proposed “fee” have any bearing on the cost of providing the service. For these reason, the proposed tax has been universally condemned by all the relevant professional bodies – Solicitors, Accountants, Trust & Probate Practitioners – and yet the Government STILL ignores these objections and STILL refuses to acknowledge that the levying of a fee of up to £6,000 for a service which currently costs £155, is unreasonable and is a tax, not a fee.

In passing, I must say on that point, that I find it surprising that Lucy Frazer QC doesn’t know the difference between a fee and a tax. Although (as you know) I wrote to her explaining that a “fee” is a charge for a service provided and will reflect the time, effort and skill in providing that service, and a “tax” is a levy on a document or transaction will usually vary with the value of the transaction, it was clear from her reply (via you, for which thanks!) that she simply doesn’t understand that difference, and still sees nothing wrong with raising a tax on service “A” (issuing a Grant of Representation) in order to subsidise service “B” (the Justice System generally).

On this basis, why doesn’t the Government charge a fee on Undertakers’ invoices, of, say, 25% of the amount of the invoice, in order to subsidise Legal Aid? There would be just as much logic in that, as in this outrageous “Death Tax.”

Needless to say, I am also dismayed – nay, even disgusted – that a Conservative Party, which claims to believe in freedom and justice should seek to impose such an unjust and unjustified tax on the relatives of dead people (in addition to all the lifetime taxes and Inheritance Tax which the Deceased will have paid in their lifetimes). If there were an alternative Party which claimed to believe in freedom, fairness and individual responsibility, but unlike this one, actually practised what it preached, I am sorry to say that I wouldn’t hesitate to vote for such a party in place of a Conservative Party which appears to have jettisoned entirely the principles of fairness on which it was launched, and prefers to sacrifice morality on the altar of financial gain.

I do hope that you will not only vote against this outrageous and sordid little proposal, but may be able to persuade all your Parliamentary Colleagues also to do so.

With best wishes

John

In summary – They just want your money really and they will lie and distort to get it. Personally, I’d rather John Lee Hooker got it. Link here

Finally – Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

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Another Interesting Notary Blog. Sort Of.

Another Interesting Notary Blog. Sort Of.

A few weeks ago I gave an example of the excitement which the Notarial profession can provide.

A world where such issues as “Shall We Use Blue Ink, Or Shall We Use Black” can really get the blood pounding through our veins.

No, really. – Link Here –

And the fun never stops.

Now such questions as to the necessary colour of ink might not be in the same league as the dilemmas faced by rocket scientists. [Or should that be Brain Surgeons? – Link Here – ]

But the fact remains that if something is not “right” – and whether anything is right or not is to be defined by the end-user, in Turkey, Kazakhstan or wherever – then its rejection will be the consequence. At the very least, money will have been wasted, but at most the consequences could be life-changing. A job application refused, a visa not granted, a trade mark not registered, a right to sit an exam in USA denied.

So just as with the blue ink – black ink problem in Hungary, we Notaries have to be on our toes.

Most of the time, it’s just knowledge we need. The sort that experience brings, rather than what the textbooks contain.

Examples:-

To apply to marry in Italy, if you’re American living in England, you need two witnesses to your application.

On the other hand if you are Australian, you need four! Is there some tradition of Australian bigamy in Italy?

Or we can be faced with the “Catch-22” requirements of the Chinese consulate. A colleague Notary has a client wishing to purchase an interest in land in China. Since he is married in England, he is required to produce a notarised English marriage certificate stamped at the Chinese Consulate in London.

The Chinese Consulate takes the view that his spouse must sign the application for their stamp. Not a problem in this case, but what if the couple had become estranged or hostile to each other? No spouse signature, no stamp.

A client of mine wishes to issue proceedings in China against the assets there of an English Company. Not unreasonably the Chinese Court requires evidence that the company exists in England and that the Directors are the Chinese men named in the Court proceedings. The evidence it requires is a notarised certificate of the English Company House details. With UK Foreign Office stamp and with Chinese consular stamp.

But – the London Chinese Consulate will not stamp the certificate without the application of the Company Directors to do so. Because they are Chinese and the certificate affects them. As if those persons will sign an application to assist my client who wants to sue them, yeah right.

Finally, for this blog, a continuing phenomenon which seems to be on the rise, certainly it has not gone away since my 2015 Blog – link here – whereby foreign lawyers are sending Affidavits of truth to be sworn and notarised but which contain patent untruths!

Increasingly, clients come to us with incomplete documents which their lawyers abroad have asked them to swear on the basis that they will either fill in blanks, or add exhibits, when the sworn affidavit is returned to them.

I have even seen a client who has brought in a page numbered “20” with a request that I witness his signature and notarise.

“What is it though?”, I ask – “It’s the last page of my mortgage, you just need to say you saw me sign it.”

And so I asked

“Have you even read the full text of the mortgage, you know, stuff like the amount of the debt, or the interest rate?” – “No my solicitor is sorting all that out.”

I tell you true, it’s a laugh a minute here in Notary land.

Of course, whether your documents are riddles wrapped in foreign enigmas, or a bit less complex, either way, – Bring them here and we will sort them out for you.

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

In recent times Companies could be forgiven for thinking that the so-called ”compensation culture” in Britain is getting vindictive, and that they are being singled out to carry the can and provide compensation for injuries which are absolutely none of their doing.

I have blogged about Wm Morrison Supermarkets plc being held responsible to compensate for injuries suffered by an innocent customer who was brutally attacked by their petrol station cashier in a completely unprovoked attack. – Link Here –

And a second blog, – Link Here – when coincidentally Wm Morrison Supermarkets plc were yet again held liable to provide compensation for perhaps millions of customers and suppliers and contacts whose private data was published on the internet by an employee in its IT department

That person had nursed a grievance which appears to have become an obsession and deliberately released the private information specifically to hurt the Company.

The thinking seems to be that if a link however tenuous between the criminal and the company can be established, then the company must pay – is in legal speak “vicariously liable”.

In the first case, if the petrol station attendant have finished his shift and then attacked someone on the bus home, there would have been no such link. The link was because he was at work (BUT! – his work and training did not include bashing the customers – never mind).

In the second case, it is not so clear. What if that criminal had nursed his grievance, had stolen the files and loaded them onto his private computer and then released them later, perhaps a year or five after leaving work with Morrison. Probably no different outcome there since the causal link was, according to the court, the failure of the business to ensure that the data theft could not have occurred. (How exactly, one wonders? Perhaps by having computers which could only be operated by two people together, like having two people flying a plane. Is that how IT Departments must work now?)

The thinking behind it is clearly that the Court and behind it the Government thinks, that by and large people should receive compensation for being hurt, physically or financially and so someone or something has to pay.

But in those cases, the losses will be borne by the Company. Which means, by the shareholders, the private investors who own the shares. Many might be owned by pension funds, so the value of pensions is reduced, but the losses are spread between many and no single person or fund has to pay the full amount.

That is all by way of preamble and scene-setting. It relates to “Civil Law”.

But if a company turns out knowingly and deliberately to have employed criminals, of course, there can be “Criminal Law” consequences.

I think that no fair-minded person would think that any particular Director of Wm Morrison Supermarkets plc should be charged by the police with any crime in respect of the petrol station attack or in respect of the actions of the man from the IT Dept. who seems to have suffered a breakdown.

But there is no real reason to think that our Government or any previous one is “fair-minded”. And fairness is a moveable feast.

All of us in this country are invested in the financial success of UK. If UK is seen in the world to be a trustworthy place of business, with courts of justice which are unbiased and predictable in the application of justice and resolution of disputes, then the world will trade here. And there is a correlation between worldwide perception of trustworthiness and financial health.

Will you base your investment strategy upon putting your money predominantly into Venezuela and Nigeria or the Central African Republic? They are all way down the bottom of the list of Corruption Perception globally – Link here –

Any coincidence? –  They are some of the poorest countries of the world -Link here –

If you compare the two charts you will not be surprised to see that [arguably, oil wealth excepted] there is a link between a Country being considered to be a place where trade and commerce is honestly conducted being also a wealthy country. And a dishonest one, is poor.

So it would seem that if we are all invested in UK being a wealthy place, we need UK to be perceived to be an honest place. No corruption, no bribery.

So, the Government seems to be thinking, how can we reduce corruption in England in our commercial dealings? Clearly most commercial dealings are undertaken by Limited or Public Limited Companies and they all have directors steering the ship.

The trouble has been, Directors get their rewards from boosting the bottom line of the company that employs them. They don’t earn another penny, quite the opposite, for putting a stop to bribery that might win a contract.

And also, at present it is a difficult job to prosecute a director in the Criminal courts. All he has to say really is “I didn’t know this was happening, I certainly did not order it” and he won’t have to go to jail.

And the law tells Directors what to do and how to behave. So if your Company is doing business with somewhere low on the CPI list, you are dealing with a place where you might be asked for bribes for contracts. Or you might see that the price of goods there can only be achieved by child labour or even slavery.

At present, a Company Director might be tempted to say to his representatives in the foreign Country – just get the contract. Don’t tell me too much about it; I don’t want to know. Thinking, close my eyes to any illegalities, then if I don’t know about them I can’t get into trouble.

That has for years been the deciding principle in relation to the criminal status of company’s actions. Did the Company [its Directors] actually want the bad stuff to happen? It is not enough for the Criminal court to find that in order to achieve good stuff the Directors had closed their eyes to bad stuff.

News for you Mr Company Director. It is reported here— Link Here – in a blog from the multinational lawyers WilmerHale.

In summary, it won’t be long before individual directors are charged not with “intentionally committing crime” but with “failing to prevent crime”.  And of course, if crime happened, that there must have been a failure to prevent it nesspa?

The new burden of proof is already in force in relation to Bribery as I blogged in 2015 – Link Here –

The rising tide in the law is a drive to change where ultimate responsibility lies when crimes are committed in the name of a UK Company.

Needs a bit more thought in my view. When a subsidiary is revealed to have systematically paid bribes for contracts to benefit a UK holding company, demonstrably crime has not been prevented.

If the UK Company has 20 directors, clearly not one of them has prevented the crime that has not been prevented. So do they all go to jail, leaving no captain at work to drive the Company and save it from bankruptcy? Or is one Director more guilty than the others and if so why?

Lots of scope [money?] for lawyers to argue the ins and outs of that. Lots of scope for sleepless nights for Directors.

The lesson that I would suggest that all Company Directors should urgently take on board, is that it may not be long before the first Directors are sentenced to a jail term, for failing to [… take adequate steps …]  to prevent crimes being committed by others, perhaps by others many thousands of miles away, in the name of the Company.

In future a prosecutor may only have to prove that something illegal was happening and that the systems for which a Director is responsible were inadequate to prevent the illegality, and the judge can send the Director to jail. Say it again – Send You To Jail. I know.

So, new laws, and in consequence there will be directors in jail.

Is that a good thing? Will it change behaviours and help to push UK up the perceived Corruption list to help it catch Denmark as the country most widely considered trustworthy.

Let’s hope so

Sweet Honesty – A Song. –Link Here –

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website www.atkinsonnotary.com

Urban Myth? Or Exploding Houses? Or Worse? The Internet Of Things. Scary Stuff.

Urban Myth? Or Exploding Houses? Or Worse? The Internet Of Things. Scary Stuff.

Does it appear to you that every new day seems to provide news of scary problems with technology?

So far as I can tell [from anecdotal evidence admittedly] the chief reason in England for the slow take-up of “smart” gadgets and particularly smart energy meters – see DT Link here –  is because folk believe rightly or perhaps rightly, that there will be no advantage for them over the traditional meter which needs to be read. Or worse, that the new kit will make mistakes.

When the new gadget is just a box linked to a telephone, who knows what information it is sending or with what accuracy?

But perhaps a better reason for a slow take-up, might be the warnings to be found everywhere you google it, that the things are easy pickings for hackers.

Exploding house anyone? –Link Here-  and – Link here –

Who is building these things anyway?

Do you suspect that the best hardware and software engineers perhaps prefer a career with Apple or Microsoft or Google, rather than British Gas?   Don’t sue me, it’s a joke.

But anyway, here’s a link to a lad of 13 who has hacked Microsoft and Google. –Link Here –  So if those two companies employ the finest minds in the World, and can get hacked, why would you fill your house with electronics that are less safe than unsafe computers? And if a 13 year old can hack in, imagine what a four year old can do.

Anyway, never mind that, this is an advisory [advisory? Is that a noun these days?] published by US certificators accredited by Homeland Security – Link Here – .

Yes, the plot of Homeland, Series One where the President’s heart pacemaker was stopped by his assassin using a mobile phone, seems to be a thing.

Happy Hallowe’en.

And as you know, our message to you is, for documents for use around the world do contact me or Louise Morley 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

Delegates. Usually, They Can’t Delegate. Not Always Convenient!

Delegates. Usually, They Can’t Delegate. Not Always Convenient!

As a Notary, I am consulted on a daily basis by people who have dealings in foreign countries, and wish to complete the necessary documentation here in England.

This is what I am for – to facilitate foreign dealings, by persons who cannot conveniently find the time or funds necessary to travel abroad to deal with those matters in person.

In most cases, the foreign jurisdiction issues a Power of Attorney to be signed in my presence. This is a mechanism which then enables your foreign lawyer to sign, in YOUR name, all of the foreign contracts, transfers, registrations, tax papers etc. which are necessary to achieve what you want.

So for the case of an adult person who is mentally and physically able to conduct their own business, the choice is between coming here to Leeds, and executing a Power of Attorney with me, or travelling to Spain, or Ulaanbaatar or wherever, in order to sign the papers there.

Which may take minutes, or weeks. Of your precious time.

So, the notarisation process is ideal to save time, for those who cannot travel for reasons of cost or pressure of work.

But what about those who simply cannot travel, or who could not deal with their own affairs even if they did travel? The Notary system would seem to be ideal for persons under disability. And in particular those with mental disability or legal incapacity.

Two classes of people in that category, are – first – children. They lack capacity under the Laws of England and Wales because of their minority. And second, persons who are adult but lack capacity because of mental impairment.

In the case of the adult under disability, the hope is that an Attorney has been appointed with either an Enduring or a Lasting Power of Attorney, documents which may have been executed by the Adult at a time before the loss of mental capacity.

If not, a suitable adult can apply to the “Court of Protection” – otherwise called the “Guardianship Office” Link here, – to be appointed by the Court as a Receiver or “Deputy”.

In the case of a child, a parent can often invoke the terms of The Children’s Act 1989 Link here.

So in England and Wales, there we are, an adult can represent the person who cannot represent him/herself.

So that’s that then? If someone has property abroad, and needs to sell it because the tragedy of dementia now means that there will be no more possibility to enjoy owning it, then the Attorney/Deputy of the Patient can come to see me in Leeds and sign the foreign Power of Attorney in the name of the Patient? That is what the Patient could do if they had capacity, after all.

And if some foreign Uncle or relative of a child might die and leave a Spanish mansion to his three year old nephew, then a parent can represent the child, because of The Children’s Act, s. 3, and sign the foreign Power of Attorney with me, to enable the asset to be transferred into the child’s name and then sold, Right?

Guess what? No. And No again.

The continuing Power of Attorney [whether “Lasting” or “Enduring”] or the direct appointment of a Deputy by the Guardianship office, does NOT include power for the Deputy to grant a new Power of Attorney to anyone else.

The legal reasoning is, that Fred the patient, or the Court itself, has appointed a suitable person “P” to act for Fred. The giver of the Power has thought long and hard and decided that P is the sort of reliable chap or lady who can be trusted to do the job properly and conscientiously.

They have not, in other words, given that power to P just so that P can hand over that Power to a foreign lawyer that Fred or the Court has never heard of, to sign deeds and documents for Fred abroad.

So, whilst P can travel abroad and do the foreign job, he cannot appoint a foreign lawyer as Attorney to be Fred’s representative to do the job instead.

And in the case of a parent, s3 of the Children Act does give power to a parent to represent the child in many ways, but it is limited. There is no power for the parent to sell the child’s property. So there can be no valid grant of a power of Attorney by a parent, to enable a foreign lawyer to sell a child’s inherited foreign property.

The obvious thing, is for the Attorney to go ahead and grant the foreign Power of Attorney – a pragmatic decision to do “what is best”. The chances are that if s/he does, all will be well. But the risks are that something will go wrong, and if it does, or if your child sues you later on reaching 18 years and legal majority, for selling something in 2017 which ten years later is worth ten times as much, you are very much on your own!

By which I mean – Personally liable, for taking an action which you had no right to take, however worthy your motives.

Which I think is a shame, but in these circumstances there may be no legal alternative than to make an expensive and slow Court application, for a Parent or Attorney who wants to do the right thing and do it legally.

The Law eh? No doubt from the best of intentions, the protections it provides can sometimes turn into straitjackets.

Music – link here

For advice on all of these matters and for all the more straightforward foreign dealings too, – as always – 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 www.atkinsonnotary.com

Random Musings From a Notary – Number Eleventeen

Random Musings From a Notary – Number Eleventeen.

Sadly there are plenty of blogs available for those who want to read about terrorism and elections and Brexit and the general horror that is the day to day news in 2017, and perhaps some of them even contain useful information.

So instead please consider this blog as a calm and stress free place where you and I can pass the time in quiet contemplation of one or two legal developments which may be of passing interest, but won’t raise the pulse unduly.

So, – squatters’ rights.

Here’s a case – link here – where the owner of a houseboat has claimed that he should be registered as the freehold owner of the part of the river his boat has floated above for the past more than twelve years. An important point here is that at low tide, the boat settles onto the riverbed.

In fact, the original application to the Land Registry Tribunal had been successful and this case is the actual Appeal, made by the Port of London, seeking to get their bit of riverbed – and river – back into its ownership.

Who knew? Not me anyway, that it would even be possible to obtain ownership of a bit of river by parking your boat, even after twelve years.

In this particular case however, the Port of London were able to persuade the Court that the claim should fail and the registration be rescinded.

Because, said the Court, to be a squatter successfully you must make your claim obvious. So, if I fence off your field and the only access to the now fenced area is a locked gate and I’ve got the only key, you can clearly see what I’m up to.

In the case of the boat, said the Court, the intention to claim the ownership of the riverbed was not made obvious. It just looked like a parked boat.

So, if you have a house boat, put a sign up. It might work, but only on a tidal river.

OK, so not a case of general application then. But interesting enough to mention, I hope?

Next up, in reference to my earlier Blog – link here – about the system of disclosure of criminal records, you may recall that as long as we have rules about disclosures [however “unfair” their application can sometime be] coupled with a requirement to apply Article 8 of the European Convention on Human Rights [called the right to privacy] there will be applications to the Court.

Basically the two laws are incompatible.

So in this month’s reported case of “P”– Link Here –, one of the applicants is a man who has two sexual offences recorded. They must, in accordance with the Rules, be disclosed on his Criminal Record to be given to his prospective employer when he applies, more than nine years later, for a job with children.

That’s the law.

But, the offences were committed when he was only thirteen. He was really just a child, with a child’s immaturity. His acts were, as the Court recognised and stated, acts which could in the most favourable light, be viewed as an “ordinary part of the process of growing up”.

So Article 8 – the “right to privacy” would say they should not be disclosed.

There is nothing in this case to suggest that matters have moved on a jot since the clash of laws was last brought before the Courts. The Judges are being asked to decide on individual cases, the law is therefore basically uncertain and contradictory.

As the Judge said, this latest case makes it clear, if it wasn’t before, that Parliament should understand that there is a problem with the operation of the scheme – of criminal records disclosure – and address it.

Until they do, the Courts will continue to be asked to deal with problems which are not problems they should be required to solve.

And finally, food for thought for the conveyancing lawyers reading this.

As you know, before completing the purchase of a registered house or registered land for a client, it is necessary to make final “searches of the Register”. The reason includes the fact that a search result will give a “priority period” – several days of grace during which no alternation can be made to the Register by anyone else and within which you can register the new title of your client.

This protects your client from, say, any chance that the seller may be a crook intending to take money from several “buyers” – sell his million pound house to twenty buyers all on the same day, then run away and let them chase his dust.

BUT, during the period protected, you need to get on and register your clients’ new property into their names.

The period of protection CANNOT be extended. You can make a new search, but if some other registration is pending to the title, and if the new search is made after the date of the other application then the new search will not extend your earlier search protection.

This means, there is a gap between purchase and registration, within which, if you are slow, a third party might get in to the title ahead of you. And the whole point of registration of a title is that you are not the legal owner of your new house, until the land registry says you are. By a completed registration.

Here is a report of a case where a buyer has fallen into the “registration gap”.– Link Here –

It seems to me that three firms of solicitors have between them, or each, made a mess of their tasks.

First of all a purchaser P paid for a transfer of land which should have reserved rights of way for the neighbour over a “shared” access, but did not. Then P’s solicitors messed about and did not get on with the job of registering that title, and in the meantime the sellers sold another plot to purchasers P2 and did grant them rights to use the accessway.

Then P2 got their title registered whilst P was dithering, within the Registration gap.

By the time P got their title registered, the rights of way of P2 were on their title.

I would be interested in knowing a bit more background to the case and its actual consequences. It seems to me that if P had actually been registered with a title which showed that no one else was able to share their accessway, this would have been something the Seller did not intend: it was the Seller’s mistake. It would have given P the right to claim money for granting the right of way to P2.

As it is, P finds himself unable to claim the benefit of what would have been a mistake anyway. Does he have a claim against anyone? Perhaps the registration gap has worked in an unusually benign way.

But no doubt some Solicitor will have pay compensation to some-one.

Plus ça change, plus c’est la même chose, innit.

Music – link here

And, as always, please 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