Franchise contracts: what to look out for Part 2

AmyL
Franchise law specialist Amy Leite's latest article on WorkingMums.co.uk looks at key terms to be aware of, regarding renewal and franchisor obligations, in a franchise agreement contract.
 
Franchise law specialist Amy Leite is currently writing a series of articles for WorkingMums.co.uk, a leading job and community website for professional working mothers and fathers.

Her last article focussed on the key franchise agreement terms of the franchise contract that franchisees should be aware of to help ensure they sign up with their eyes fully open. You can read this here. 
 
The article below continues to demystify some key terms, covering renewal and the franchisor’s initial and continuing obligations.
 

A foreword from amy

As I said previously, before you read any further, articles such as this should not be seen as a substitute for taking legal advice on the terms of your franchise agreement but more a tool to help you have a working knowledge of the terms of the franchise agreement before you have it reviewed and thereafter.

There are key franchise agreement terms you should look out for in your draft franchise agreement. We are often surprised to hear how many people do not take advice on the terms of their franchise agreement prior to signing it. Often we hear that this was because they were told it was non-negotiable or the fees for a review seemed high. In our experience, regardless of whether the franchise agreement is negotiable or not, being fully aware of what your franchise agreement means in order to take a considered commercial decision and enter the agreement with your eyes open is invaluable.

It is therefore very important that you have at least read the franchise agreement ahead of your solicitor carrying out a review for you. It is very rare that a franchise review (either by report or otherwise) would comment on every single clause of the agreement and, as you will be expected to abide by the terms, you need to be clear on what all the terms are however unimportant certain things may seem.

Renewal

When considering whether a franchise will be suitable for your needs you need to consider what your long term business goals are. Are you looking to take a franchise as an income stream to carry you through to retirement in 5 years time? or are you looking at the franchise as a long term income stream and potentially with a view to building a business up which is capable of being re-sold?

It is important to consider your strategy in light of the renewal provisions in your franchise agreement. Your franchise agreement should contain a right of renewal i.e. the right to enter into a new franchise agreement for a further term after expiry of the first 5 (or 10) year term.

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Best Personal Injury firm in Havering & Brentwood

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Legal 500 UK have ranked Pinney Talfourd as the leading personal injury firm in Havering and Brentwood, and one of the best firms in the whole of Essex.

We are delighted to announce that the Personal Injury Department at Pinney Talfourd has been ranked as one of the leading personal injury teams in Essex by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK. We are the only Legal 500 recognised personal injury firm in Havering and in Brentwood.

Stephen Green is a Partner and leads our personal injury team. Stephen is a specialist personal injury solicitor with many years of experience. His particular strengths include industrial disease claims and claims resulting major road traffic accidents. The 2016 edition of Legal 500 specifically notes one of his more complex cases: ‘Acted for a Claimant making a dependency claim arising from the death of her partner from mesothelioma due to occupational asbestos exposure. Claim settled at the top end of a six figure sum”.

Stephen has written a case study on this case (link to ‘when a personal injury settlement is final’) and has worked in association with Mesothelioma UK to set up a support group for sufferers of asbestos related disease in Essex.

Stephen is a member of the Law Society Personal Injury Panel and the Association of Personal Injury Lawyers (APIL). He is also an APIL Accredited Fellow. He is also a member of Solicitors Association of Higher Court Advocates.

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Clinical Negligence team one of the best in Essex

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Legal 500 UK results have just been announced and Pinney Talfourd’s ‘team of specialists’ come highly recommended.

We are delighted to announce that the Clinical Negligence Department at Pinney Talfourd has been ranked as one of the leading teams in Essex by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK. We are the only Legal 500 recognised clinical negligence firm in Havering and in Brentwood.

Kim Huggins leads our clinical negligence team. Kim is a specialist clinical negligence solicitor with many years of experience in this area. The 2016 edition of Legal 500 specifically notes one of her more complex cases: ‘A negligent hip replacement including extension of limitation by standstill agreement. Advice given in relation to causation and damages. Expected value circa. £500,000.’

The team includes members of UKABIF (The United Kingdom Acquired Brain Injury Forum) and APIL (Association of Personal Injury Lawyers). Pinney Talfourd is a corporate sponsor of Headway and the Spinal Injuries Association and an active supporter and contributor to the local divisions of Headway, HADS (Havering Association for People with Disabilities) and SNAP (Special Needs and Parents).

FIND OUT MORE

If you would like to discuss a potential claim with our Clinical Negligence team please call Kim Huggins on 01277 246836 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

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Legal 500 UK recommends our commercial work

Legal 500 UK recommends our commercial work
Pinney Talfourd has been ranked by Legal 500 UK as a leading firm in the Corporate Commercial and Commercial Property categories.

We are delighted to announce that our Commercial Department has been recommended yet again by Legal 500 UK 2016 in the following rankings:

Legal 500 UK praised Partner and Head of Department Julien Pritchard, saying his team “gets the job done efficiently, no matter how complicated.’”

 

They highlighted a number of notable cases including:

  • Dismantling of a RITA scheme with complex SDLT issues, application of reliefs and multiple transfers with a value in excess of £30million.
  • Private equity purchase of £11 million commercial property and related landlord and tenant advice.
  • Corporate restructure of a significant and established local business including partnership to company transfer, sale of a commercial property and refinancing.
  • Advising in relation to the acquisition of a service provider including advice in relation to warranties, indemnities and employment related issues. Consideration payable for shares was circa £3million.
  • Advising in relation to the acquisition of an underwriting agency including consultation with the Takeover Panel, deferred payments, earn-out and employment related issues.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers in the UK.

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Legal 500 UK recommends dispute resolution team

Legal 500 UK recommends dispute resolution team
Pinney Talfourd's property litigation, commercial litigation and debt recovery teams are recommended by Legal 500 UK. 

Legal 500 UK announced their 2016 rankings in September and we are delighted to announce that our Dispute Resolution Department has been recommended in the following rankings:

Stephen Eccles heads up the Department and is recommended as a “leading individual” and ‘knowledgeable and efficient’. Legal 500 said the debt recovery team was “responsive and commercial”.

Legal 500 highlighted a number of notable cases including:

  • Court of Appeal case involving a procurement contract and in particular breach of contract and the Unfair Contract Terms Act 1977.
  • Advising a well known retailer in relation to planning, development and break clauses relating to their warehouse facility. Value circa £10million.
  • Advising in relation to the development of premises as a hotel including advice upon rescission, breach of an agreement to lease, damages and specific performance.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

More information

If you would like a member of our team to advise you on any business or personal dispute please contact our Dispute Resolution Department on 01708 229444 (Upminster or Hornchurch), 01277 211755 (Brentwood office) or 01702 418433 (Leigh-on-Sea). 

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Employment Department is a leading Essex firm

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Legal 500 UK results have just been announced and Pinney Talfourd’s ‘team of specialists’ come highly recommended.
 

We are delighted to announce that our Employment Department has been recommended yet again by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

Legal 500 noted in the rankings that “Pinney Talfourd’s ‘team of specialists’ includes the efficient and knowledgeable’ Alex Pearce. It is noted for its ‘sound and practical advice.’”

Notable cases include ‘acting for a record label regarding the employment aspects on the sale of the share capital to an international group of music companies and a hive out agreement of the merchandising and live events.’

Alex Pearce is a member of the Employment Lawyers Association.

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Family Department lead the way in Legal 500 rankings

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Legal 500 UK results have just been announced and the Family Law team are celebrating a move up to Tier 2 in the rankings.

We are delighted to announce that the Family Law Department are now ranked as Tier 2 firm by Legal 500 UK 2016

Leading firm in brentwood and havering

This means that we are now the leading firm in our local boroughs of Havering and Brentwood, beating stiff competition from other firms in Romford and Brentwood.

Our team includes members of the Law Society’s Family Panel and Advanced Family Panel, accredited Resolution specialists and Collaborative Family Lawyers.

Legal 500 UK writes “Catherine Polli and Sebastian Burrows at Pinney Talfourd LLP are singled out as being ‘excellent, intelligent and thoughtful solicitors’.”

notable cases

  • Court of Appeal Children Act proceedings for leave to remove from the jurisdiction
  • High Court case reported in the nationl press. Successful application was made to rescind the Decree Nisi upon the basis of bigamy
  • Financial Remedy Proceedings involving assets circa £10million involving company valuations.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

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Wills, Tax, Trusts and Probate Department recommended again

UK_leading_firm_2016
Legal 500 UK results have just been announced! We are ranked again as a leading firm for personal tax, trusts and probate work.

We are delighted to announce that our Wills, Tax, Trusts and Probate Department are recommended yet again by Legal 500 UK 2016.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

Growing team

Matthew Edwards’ team is in demand due to it's outstanding reputation and solicitors Christopher Dickinson and Nicholas Conway have recently joined the popular team.

Christopher is based in Hornchurch whilst Nicholas is based in the Brentwood’s new office on Ongar Road.

The team regularly offer presentations and free advice sessions to the local community and Matthew Edwards is a member of the Court of Protection Deputyship Panel, one of only 68 in the country. All members of the team are members of STEP.

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Legal 500 UK 2016 results are announced

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Pinney Talfourd were recommended yet again in the Legal 500 UK 2016 rankings, when results were published this week.

Pinney Talfourd LLP Solicitors was recommended in an outstanding ten categories when the Legal 500 UK 2016 results were published on Wednesday, beating stiff competition from other local firms. 

These lists are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK. Pinney Talfourd is now recommended for excellence in the South East region for:

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK.

Our 2016 rankings

Individual recommendations

Julien Pritchard and his team were noted in the Corporate and Commercial rankings as a team that “gets the job done efficiently, no matter how complicated“.

Stephen Eccles was recommended numerous times for his excellent work in commercial litigation and debt recovery. “The knowledgeable and efficient Stephen Eccles is recommended”. They also noted he had a "responsive and commercial team".

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Should voluntary overtime be included in holiday pay?

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Alex Pearce, employment law specialist at Pinney Talfourd in Essex advises on whether you should include voluntary overtime in your holiday pay calculations.

The issue of how to calculate holiday pay has rarely been out of the news in the last few years with a steady stream of case law on the topic. We turn our attention to an issue on which there has been little guidance: voluntary overtime.

Alex Pearce, employment law specialist at Pinney Talfourd in Essex advises on whether you should include voluntary overtime in your holiday pay calculations.

Compulsory overtime

In Bear Scotland Ltd v Fulton [2014] the Employment Appeals Tribunal (EAT) decided that employers have to take into account compulsory non-guaranteed overtime payments when calculating holiday pay in respect of the four weeks’ annual leave given by the Working Time Regulations 1998 (WTR). So, if you do not guarantee overtime but your employee must work it if required, then you will need to include payments for this in their holiday pay.

But the Bear Scotland case did not give us any answers on what to do when it comes to voluntary overtime. Voluntary overtime is work that you do not have to offer and which your employee can turn down if they do not wish to work it.

Voluntary overtime

A new case, albeit only an employment tribunal case, which is not actually binding on other tribunals or the EAT, has given some guidance on whether voluntary overtime should be included when you work out holiday pay. Pending any appeal there may be against this decision, it does give an indication of how tribunals are likely to approach the issue. In White and others v Dudley Metropolitan Borough Council [2016], the 56 claimants worked as skilled tradespeople, maintaining the council’s stock of social housing. They were invited to work on a Saturday on a voluntary basis and they also agreed to be on a standby rota, every four weeks, for emergency call-outs and repairs. Many of them gained another £725 every month for the week they were on standby.

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Family lawyers set to lobby Parliament

Resolution
Members of Resolution plan to lobby Parliament on 30th November 2016 to raise awareness of numerous issues within family law.

Resolution is an organisation of 6,500 members, mainly family lawyers but also other professionals in England and Wales who are committed to the constructive resolution of family disputes. Resolution members promote a sensitive and cost-effective approach to resolving family disputes. The members are trained to come up with solutions that consider the needs of the whole family and resolve the dispute in the least acrimonious way.

The current chair of the organisation is arranging an event for all members to attend at Westminster to lobby Parliament for the day. The lobby day is planned to take place on 30th November 2016 and Resolution are calling for all members country-wide to pledge their support and attend.

The organisation’s aim is to raise awareness of the current issues in family law that Resolution feel need to be addressed by the government. Resolution have for some time been calling for change in the legislation of a number of areas such as; the introduction of no fault divorce, access to justice for vulnerable people and better rights for cohabiting couples.

The lobby day will give members the opportunity to meet with MPs and discuss the issues in detail and hopefully influence the government’s decision to make the policies that Resolution feel are required to move family law forward.

The family lawyers here at Pinney Talfourd are members of Resolution and plan to support their organisation and take part in the lobby day.

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Costly mistakes when couples divorce

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Divorce is never easy and is an emotional time for all concerned. Don't let your emotions cause costly mistakes.

It’s all too easy to become embroiled in who is right and who is wrong and lose sight of the long term position. Here are some of the costly mistakes people make when divorcing.


Not considering mediation

Mediation can save you thousands of pounds in legal fees and emotional turmoil. An agreement reached at mediation can be turned into a court order which is binding and enforceable without the need for a lengthy, exhausting court battle. An agreed settlement will always feel better than one that has been imposed on the parties by a Judge.

Hiring an aggressive lawyer as punishment

Divorce settlements are based on fairness, need and sharing and whilst there is no formula, the factors that the courts have regard to are set out in S25 of the Matrimonial Causes Act 1973. The courts will not, as a rule, punish your spouse for being a bad person. The best “revenge” is to live well and happy post divorce.

Not producing an accurate budget

Clients invariably under estimate their expenses and then later on in the process realise that they have forgotten the “one offs”  such as payments made on a yearly basis, the emergency payments and so forth. Take time to really consider what you pay out for. You will be surprised at how those little things add up.

Not being realistic

Two households cost more to operate than one. If the income is unchanged, there has to be compromise on both parts.

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Not such a quicky divorce? Here's why...

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The idea of a quick divorce is a thing of the past with the introduction of a new system that can't cope with demand, says family law Partner Catherine Loadman.

In June 2015 the Government set up 11 divorce centres across England and Wales to deal with the issue and administration of new divorces. For London and the South East, a huge geographical area, all divorces begin in Bury St Edmunds divorce centre rather than the local family court. It was thought that, once up and running Bury St Edmunds would deal with 40% of the divorce work in England and Wales.

12 months on, the first statistics have been published and they make worrying reading - indicating that the number of divorces issued in the last 12 months far exceeds the levels that were anticipated or planned for.

By way of example, every day they receive;

  • 250 -300 new divorce petitions
  • 1200 items of post
  • 700 phone calls

It is anticipated the Bury St Edmunds are likely to be issuing between 40,000 to 45,000 new divorce petitions in the 12 months it has been open.

In the wake of these figures, Resolution, the national organisation for family lawyers has stated that the divorce centres are under “significant strain”. 

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School holidays cause stress for separated parents

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School holidays for separated parents are not always plain sailing. Courts and law firms see a huge rise in children related enquiries in holidays. 

As the summer holidays were heating up so were disputes between separated parents. September is set to be a busy month for new children matters being issued at the court with the school summer holidays kicking up all kinds of disputes.

Parents often find school holidays, whether it is Summer, Easter or Christmas the most difficult times of the year. During the long summer break parents find themselves arguing about when and for how long each of them should spend with the children and whether or not either parent can travel abroad with their children for the purpose of a holiday.

Despite the court rule changes in 2014 requiring that disputing parents attend mediation prior to issuing any court application, save for urgent or exempt applications, the stats from the Court advisory service (CAFCASS) show that parental disputes are still on the rise.

In July 2016, CAFCASS received 3,468 new cases and the number of new cases received in the first quarter of the current financial year is up by nearly 10% compared to last year. August figures will no doubt be just as high.

Our family law specialists are trained to advise and assist parents in these situations to resolve matters, whether that be by way of negotiation or via the court. The team includes members of the Law Society’s Family Panel and Advanced Family Panel, accredited Resolution specialists and Collaborative Family Lawyers.

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California Dreamin’ - no fault divorce

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Sebastian Burrows explains why Resolution is leading the fight for no-fault divorces to be reinstated on the statute books in the Californian irreconcilable differences model.

 

Time flies. 20 years have passed since a no-fault route to divorce landed on the statute books and was then promptly removed. While divorce is possible after 2 years separation – without blame – there is still the wait. 2 years is a long limbo period. 

Urban myth is rife in the law. The notion of Common Law spouses is just such an example that often requires us to deliver hard advice to clients who have held that belief, often for decades. So too the idea that a couple can divorce on the basis that they simply have irreconcilable differences. We all know what that means, we think, but tough; we can’t use it.

If we can marry without too much trouble while in the delight of love and romance, why can’t it be undone just as simply if the love goes? Financial security is the main answer. The law is there to ensure financial security for a divorcing couple. But is the idea that dissolving a marriage with less distress, exposes people to financial risk? No. The hurdle is the law striking a balance between the religious significance of marriage and ensuring human compassion.

English law is a finely tuned, ever developing machine. But in the field of divorce, it would seem that an increasingly secular society and family is developing faster and we are dealing with outdated technology that risks causing serious animosity between a couple when what they want is help, not (more) heartache.

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Who will inherit your estate - promises and arguments

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Solicitor Chris Dickinson explains the importance of knowing what is in your estate and who you have promised it to.

From time to time, families will talk about the future and parents will often give an indication to their children of what they can expect to inherit when they pass away. However, relationships and circumstances can change over time and this may influence how people choose to leave their estates.

In the recent case of Davies v Davies, an elderly couple owned a farm worth in the region of £4m. They had three children. One of their daughters worked on the farm for 25 years for a minimal wage as she helped support its upkeep. The other two children did not work on the farm as they were progressing their own careers. The parents had repeatedly promised their daughter that she would eventually inherit the farm from them in recognition of her commitment to its maintenance.

After a family dispute, the couple had a falling out with their daughter and sought proceedings to evict her from the farm. In turn, the daughter claimed that she had a beneficial interest in the farm through her commitment to its upkeep and the promises made by her parents. The daughter also claimed that she had worked for a minimum wage on the understanding she would inherit the farm and, if this was not going to be the case, that she would have pursued a more fruitful career like her siblings.

The judge agreed with the daughter’s argument that she had acted to her own detriment in reliance on her parents’ promise and made an award of £1.3m to her. The parents appealed this decision and were successful in having the daughter’s award reduced to £500,000.

Cases like this demonstrate the importance of knowing what is in your estate, who you intend to benefit, whether there are likely to be any claims brought against you or your estate and, ultimately, seeking proper legal advice to ensure your affairs are in order. 

MORE INFORMATION

If you would like to discuss your affairs and have your Will prepared or updated,please contact a member of our Wills, Trusts, Tax and Probate Department who can expertly guide you through the process. Call 01708 229 444 or email This email address is being protected from spambots. You need JavaScript enabled to view it. 
 

This article was written by Chris Dickinson, an Associate Solicitor in our Wills, Trusts, Tax and Probate Department at Pinney Talfourd Solicitors. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at August 2016.
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New solicitor joins Brentwood Property team

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Our Residential Property Department are delighted to welcome solicitor Chloé Pannu to the team in Brentwood. 

As you may already know, Pinney Talfourd has relocated offices in Brentwood and are now based at New North House on Ongar Road. This new office space has allowed us to expand our teams to cater for the growing demand in the Brentwood area. 

The Residential Property Department are as busy as ever and are delighted to welcome Chloé Pannu to the team to help serve our growing number of clients. Chloé studied at Brunel University and then completed her training at another Essex firm to qualify as a solicitor in July. She is working alongside Head of Department Paul Berry who is confident she will be "a great asset to the team."

She specialises in all areas of residential property including freehold and leasehold sales/purchases, investment purchases, auction property, lease extensions and right to buy.

The recent move has also allowed us to offer a better level of service from the Brentwood office.

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Office of the Public Guardian – Gratuitous Care Payments

Private-client
Becoming a Deputy carries a lot of responsibility and The Office of Public Guardian has provided some guidelines regarding family care payments.

Individuals who take on the role of Deputy to a person lacking capacity (usually to a close friend or family member) often fail to fully understand and appreciate the burden, responsibility and duties that fall to them in handling the financial obligations and in particular maintaining accounts and financial records of expenditure.

Such accounts are open to inspection by the Office of the Public Guardian, not only on an annual basis but particularly if a third party should have cause to raise concern over items of expenditure on behalf of the donor.

On 18th May 2016 the Office of the Public Guardian published a practice note on its approach to family care payments that Court of Protection Deputies make to family members who are providing care to someone who lacks mental capacity.

The Guide provides a helpful definition of family care, the legal framework and when Court of Protection authority is required. It highlights factors a Deputy should consider when deciding if payments are in the patient’s best interest and the level of those payments.

Family Care

Frequently, family members provide a level of informal care such as cooking, laundry, cleaning and companion care. On occasions this can go beyond this to include physiotherapy and nursing skills over lengthy time periods and many do this without expectation of payment. However, receiving such care can frequently be in the Patient’s best interest and enhance their quality of life. If there is no contractual relationship and the care is provided by way of natural love and affection without agreed hours or breaks the Deputy would be entitled to consider a family care package.

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Lasting Powers of Attorney and bank difficulties

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Lasting Powers of Attorney (LPAs) are becoming more common due to an increase in awareness. However banks may need more training to keep up.
An LPA is a legal document that allows you (the Donor) to decide who will act and make decisions on your behalf when you do not have the mental capacity to make decisions for yourself. The people you appoint are known as your Attorneys and they have a duty to act in your best interests. 

The purpose of an LPA is to protect your future by ensuring your affairs will still be looked after by someone you trust in the event you lose the ability to make decisions for yourself.

The first step for an Attorney stepping in to assist with your financial affairs would be to make contact with your bank. This allows them to be registered on the bank’s records as your Attorney, with the appropriate authority to manage your accounts on your behalf.

However, reports suggest that over the last five years banks have received an increasing number of complaints from people attempting to manage their loved ones accounts under an LPA. The reason for these complaints appears to be two fold:

1. Staff within banks have not been properly trained to deal with LPAs and have subsequently misadvised customers; and

2. The Donor and Attorneys themselves have made mistakes with either the preparation and registration of the LPA, or have not presented the bank with sufficient documentation to have themselves noted on the account.

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Decisions over rights of a deceased body

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Following the death of a family member there can be disputes over decisions on the funeral. Contentious probate expert Kerry Hull explains.

More often these arguments can be whether the deceased should be buried or cremated where the deceased has previously given no clear indication of a preference. However, on occasions such disputes can go even deeper.

The personal representatives of a deceased are primarily responsible for the disposal of a body. Their appointment and duties arise normally through the naming and appointment in the deceased’s will. If there is no will it will be the person who is entitled to letters of administration.

However, S116 of the Senior Courts Act 1981 gives the court power, in special circumstances, to pass over the person with primary responsibility, should it be necessary and appropriate to do so.

ANSTEY –V- MUNDLE AND ANOTHER (2016)

S116 of the Senior Courts Act 1981 was used in a recent case when the immediate family members were unable to agree where the deceased body should be buried. Having been born in Jamaica, but having lived and worked in the UK for many years the deceased had expressed a wish to be buried beside his mother in Jamaica. A will (the validity of which was disputed) appointed two of his daughters as Executors and set out the same wish. Two other daughters objected, believing the deceased wished to be buried in the UK. At an injunction hearing the court determined to whom letters of administration should be granted solely for the purpose of disposal of the body only.

The Judge determined that the court had jurisdiction to direct who had the right and duty to bury the deceased. It was unclear if the power under S116 SCA 1981 enabled the court to choose among a group that was equally entitled. The Judge therefore settled the matter upon the courts inherent jurisdiction applying relevant criteria identified in an earlier case of Hartshorne –v- Gardner (2008), such criteria being:

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