We are also looking for two Private Client lawyers (Solicitor or Legal Executive), 5
years+ PQE to join the Private Client teams in Lymington and New Milton.

We are growing and expanding our business and will be able to offer many avenues for progression and innovation. As a family first law firm we are mindful of the needs of a work life
balance and do what we can to manage that while also achieving the high
standards we set ourselves.

If you are interested, find out more here >>

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Every hour, two LPAs are rejected by the Office of the Public Guardian in England and Wales. That’s 22,000 a year. (Data from Which? 2020) Lasting Powers of Attorney (LPAs) came into effect in 2007. They replaced Enduring Powers of Attorney (EPAs), although any existing EPAs remain valid. An EPA could only deal with your property and finances whereas LPAs are in 2 parts so can deal with both property and finances and your health and welfare. LPA’s were introduced by the Mental Capacity Act 2005 to replace EPA’s. They are far more detailed as it was felt that the old EPA regime could possibly leave Donor vulnerable to unscrupulous Attorneys.

If you have an EPA you should consider making  a health and welfare LPA to ensure you are covered for all situations. Without a health and welfare LPA people are often surprised to find that decisions about medical treatment, care and where you may live can be made by social services or the NHS and not the family.

At Heppenstalls we ensure that we include clauses that future proof the Donor and the LPA. We have found that issues can arise if consideration is not given to the range of investments that the Attorney or a Financial Advisor may wish to make in the future. Release of your Will and medical records needs to be considered also.  In respect of the health and welfare LPA discussion needs to be had as to whether your Attorney can make medical decisions as well as welfare decisions and whether any restrictions need to be written in to the LPA to limit the Attorney’s decision making powers.

Business LPAs have also become popular over the last couple of years. You may wish to have different Attorneys for your business interests, so that should something  happen to you the business can carry on in the interim period. This is particularly important if there are any bank loans or financing in the business. Heppenstalls can discuss with you your options as they will be different dependent upon whether you are a sole trader, partnership or limited company.

If you concerned about these issues, Heppenstalls can help you explore the options in a friendly and informal way. If you would like to make an appointment, or to talk to our team about this article, please contact us on 01425 610078 or 01590 689500.

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As it stands there are no restrictions in the UK on who can prepare a will: meaning anyone, whether qualified or not, can sell their will-writing services to you. There are currently a staggering 208,000 unregulated firms in England and Wales.

Despite calls to increase regulation, no plans have been made as of yet for that to happen. It comes as a social media survey recently carried out by Solicitors for the Elderley (SFE) found that 98% of people believe the sector should be regulated.

Without such regulation, older and vulnerable people are being emotionally and financially impacted by unqualified salespeople who lack the right legal training or qualifications needed to draft a will. More often than not, they lack the specialised expertise to work with vulnerable people, for example where there is a risk of financial abuse, undue influence and potential capacity issues. Also, complex cases such as wills involving mixed or blended families such as second marriages involving stepchildren from one or both partners. Unregulated firms don’t have the high level of insurances needed in place which are essential as this protects against negligence in the event wills aren’t completed correctly or if bad or misleading advice has been given.

As it stands, the current system enables people to make decisions that can have irreversible consequences on families across the country, losing them thousands of pounds and causing emotional distress.

When making a will, always seek the advice of a regulated specialist such as an SFE accredited solicitor to ensure your legal needs are protected. They have the specialist soft skills training and expertise needed to work with older and vulnerable clients. The impact of not receiving regulated specialist advice can result in devastating consequences for you and your loved ones.

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The duty of Attorney must be to always act in the best interests of the donor (the person giving the Power) and consider the needs and wishes of the donor as far as possible.

The Attorney must not take advantage of the donor’s position to gain any benefit for him/her self.

The Attorney must keep the donor’s money and property separate from their own and other peoples.

The Attorney must consider the Mental Capacity Act and the supporting Code of Practice, when acting on behalf of the donor under an Enduring Power of Attorney or a Lasting Power of Attorney.

An Attorney should keep accurate accounts of their dealings for the donor. They should have a list of the donor’s bank and building society accounts and other investments, as well as proper records of all the donor’s income and expenditure. This includes receipts, bank statements and so on. The donor’s money and assets should remain the donor’s name.

If acting under a General Power of Attorney, the donor will still have capacity to manage his/her own affairs. A General Power is usually granted in limited circumstances, for example if the donor will be abroad when a particular transaction needs to take place, perhaps a property transaction. Loss of capacity revokes a General Power of Attorney, so is not particularly useful in the long term for the elderly client. However, it can be used as a temporary measure to cover an intervening period, for example before a Lasting Power of Attorney is registered with the Office of the Public Guardian.

The Court of Protection can direct that an Attorney produce accounts at any time. If satisfactory accounts are not produced, then the Power may be cancelled. After the donor’s death, the Attorney may be required to account to the Personal Representatives of the donor’s estate in relation to their dealings.

Selling the Donor’s Property

All actions taken on behalf of the donor must be in the donor’s best interests. If the Attorney believes that selling the property is in the donor’s best interests and the donor is the sole owner of the property and the Power permits it (basically if the Power does not restrict a sale in any way), then the Attorney may decide to sell the property. Attorneys do not need the approval from the Court of Protection or the OPG to sell the donor’s property. However if for any reason the sale is below market value or the Attorney or a family member want to buy the property, they must apply to the Court for permission. If an Attorney does not do so, then the sale may be challenged. If the donor has a Registered Health & Welfare Lasting Power of Attorney, the Attorney may need to discuss matters about the sale of the donor’s property with any Attorney appointed to make decisions about where the donor lives.

Gifts

An Attorney has limited powers to make gifts to themselves and others from the donor’s property. What are called “seasonal gifts” can be made, for example at Christmas or to mark other religious festivals, occasions such as anniversaries, births, marriages/civil partnerships and the like to people who are related to or connected with the donor.

An Attorney can also donate to any charity the donor supported or might have been expected to support, although it may be difficult to determine what might be “expected” if the donor did not actually undertake such an action. The value of any gift must be reasonable and proportionate in relation to the value of the donor’s estate.

If larger gifts of money or property are to be made, for example as part of planning for Inheritance Tax, the Attorney must apply to the Court. Just because a disposal may mitigate Inheritance Tax, it is not necessarily in the best interests of the donor, but rather the donor’s family or inheritors.

If a gift larger that the limit set is made without permission from the Court, the money or asset may have to be paid back.

Can an Attorney decide where the donor should live?

An Enduring Power of Attorney does not give the Attorney the legal right to decide where the donor should live. An EPA relates to property and assets only. The decision where the donor should live can only be made under the Health & Welfare part of a Lasting Power of Attorney.

Are Attorneys paid for time and expenses?

Professional Attorneys, e.g Solicitors and Accountants, may charge for their services if the Power provides for this. Private Attorneys are not normally paid for their work, but can recover reasonable expenses such as postages, stationery, the cost of phone calls and so on. What is considered to be reasonable will vary according to the circumstances of each case. It will depend upon what the Attorney is required to do and the value of the estate of the donor. The OPG can look into any complaint that Attorneys are claiming excessive expenses and, if they are considered unreasonable, they may have to be repaid. In extreme cases, the OPG may apply to the Court to cancel the Attorney’s appointment.

Can an Attorney retire?

Yes. An Attorney can cease to act at any time they wish. This is called “disclaiming the Power” and is preferably done by signing a Deed of Disclaimer, although strictly speaking a formal Deed is not a legal requirement. However as there needs to be proof of disclaimer, for production to any person or body to whom or which the Power was produced, it is necessary that the disclaimer is at least in writing, even if not prepared as a Deed. Obviously the donor should be notified of the retirement and if the Power if Registered, the OPG must also be notified.

If the retiring Attorney is the only one appointed and the donor lacks capacity to make a new Power, then the retiring Attorney should try and find someone suitable to make an application to the Court to be appointed as Deputy. If the Attorney is appointed jointly with another Attorney and one of them retires, then the whole Power fails. If the Attorney is appointed jointly and severally then following the retirement of one, the other Attorney can still continue to act.

The Office of the Public Guardian

The OPG does not supervise the Attorney or tell them how they should manage the donor’s affairs, but it will consider complaints about Attorneys where necessary. If an Attorney needs advice on practical, financial or legal matters, they should seek help from Solicitors, Accountants, or other professional advisers. The OPG can provide general guidance on its processes, but it does not provide legal advice or services.

If you have more questions, speak to one of our team today on 01425 610078 or 01590 689500.

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However in recent years, some developers, more predominantly in the North West area of England, have been selling their new builds on long leaseholds. This is a trend which is now developing in the South Eastern part of the country.

Although leasehold homeowners own their home, they will not have the ultimate control over it, but instead are governed by the contractual provisions contained within the lease.

It is not unusual for a lease to have a clause allowing for the freeholder to charge a ground rent, whether that be nominal, fixed or increasing.

Some developers have sought to include unfair ground rent clauses in their leases for example the doubling of ground rent every ten years.

This means that homeowners could face having to pay high ground rents disproportionate to the value of their homes and the provision will make the Lease unsaleable to anyone requiring a mortgage.

It is not only the ground rent which is prohibitive but the developer can also charge to give their permission to you if you wish to undertake any additional works to the property,  for example to build an extension. Some homeowners have been forced to pay £1000 plus fees to obtain such consent.

The government is being put under extreme pressure to tackle the unfair ground rent abuse and to this end Ministers are proposing a complete ban on new houses being sold as leasehold interest and reducing ground rents to zero.

It is also understood at this stage, that companies such as Taylor Wimpey have agreed to buy back a number of freeholds with a view to extinguishing such clauses from their leases and it is hoped that these deals will encourage other developers to compensate affected homeowners.

If you are concerned about any of these issues, please contact Arthur Scaife or any of our team at Heppenstalls Solicitors New Milton 01425 610078 or Lymington 01590 689500.

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https://www.newforestshow.co.uk/

Heppenstalls History

Heppenstalls was founded in 1893 by Herbert Culllin Heppenstall, our Lymington office was the first but not on our current site. The firm moved into 75 High Street in 1896. New Milton and Lyndhurst followed later in 1923. New Milton still occupies the same premises at 82 Station Road. Over the years we also had offices in Milford , Highcliffe and Brockenhurst

In 1946 we became Messrs. Heppenstall Rustom & Rowbotham and are proud that two generations of families from our founders Heppenstall and Rustom have worked with us.

Over the years the firm has changed and expanded, in 2011 we became a Limited Company, being one of the first Solicitors’ Partnerships to fully incorporate.

In 2021 we moved our Lymington office from the High Street to 49,South Efford House, Milford Road, SO41 0JD next to Otter nurseries. These modern offices are easy for our clients to attend and afford free onsite parking and also it has a lift for disabled access.

Today we have offices in New Milton and Lymington, with three Directors on our Board. Our Managing Director Alexandra Jennings has been with the firm since 1978 when she started as articled clerk. She was joined by Marie Redman and Nicola Davies in more recent years.

Heppenstalls have seen many changes to the local area and the law in our 129 years! 2020 and the pandemic brought a new challenge for us and we had to be inventive, with video calls, visiting our clients in their gardens or witnessing Will signings through windows. Thankfully 2020 was a year of fabulous weather! We are part of the community and generations of families have continued to be our clients so we had to ensure we continued to offer the same level of service. Thankfully things in 2022 seem to be slightly more a return to normal and we are taking appointments with clients in our offices. We continue to wear masks and our staff undertake frequent lateral flow tests to ensure our clients’ and staff’s safety.

Heppenstalls specialises in Residential conveyancing which includes buying and selling properties,  enquiry lease extensions,  transfer of equity re-mortgages and Private client work which includes Wills, Trusts, Powers of Attorney, Deputyships and Probate. We also provide tax advice and can prepare tax accounts for our clients. In addition we can offer advice on contentious probate work which includes contesting a Will, making an Inheritance Act claim against the estate, disputes between Executors and / or Beneficiaries. We also offer Notary services.

If you would like to make an appointment, or to talk to our team about this article, please contact us on 01425 610078 or 01590 689500.

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Research commissioned by SFE has revealed that almost half (48%) of people living in the South of England who have a will haven’t updated it for more than five years, meaning nearly half of wills made in the area are likely to be out-of-date. Of those, over a third (33%) haven’t updated it for over 7 years, and over a fifth (21%) haven’t dusted it off in more than a decade.

Having an up-to-date and well drafted will is crucial in ensuring your wishes are carried out in the way you’d like when you die.

This year, SFE, a membership body representing over 1,600 solicitors specialising in working with older and vulnerable people, has launched “Update Your Will Week” (28^th March – 3^rd April) in a bid to raise awareness of the importance of updating your will regularly.

Local SFE solicitor Danielle Harvey recommends that a will be reviewed and updated every five years, or when a major change in your life occurs that impacts you or your loved ones, such as divorce, marriage, a new birth or even death in the family. SFE’s research has revealed that almost a third (33%) of people in the South with a will have had significant changes to their lives and circumstances since they drafted it.

Danielle has warned that an unchecked and outdated will could cause severe implications for your loved ones after death – including missed inheritances and higher inheritance tax fees: “Many people assume that once you have drafted a will you don’t ever have to review it, and that your wishes will be carried out as you wish them to be posthumously – but unfortunately, that’s far from true.

“If you remarry, for example, your will gets revoked. Or if you marry into a family and have stepchildren that you’d like to inherit your assets – this won’t happen automatically unless you stipulate it in a new will. All these details are crucial to avoid family disputes – which we know can be very distressing for your loved ones.”

In fact, SFE’s research revealed that:

• Only 16% of brits realise that remarrying invalidates a will.
• Less than a third (31%) of people realise stepchildren won’t be included in your will unless you stipulate that separately.
• 17% of people wrongly think you can update your will by making changes on the original document and initialling them.

The findings have also revealed that 53% of people in the South of England don’t have a will in place at all – a worryingly steep figure. Danielle has highlighted that one in ten British families (11%) have been caught out by a ‘bad will’ – a will that is out of date or badly drafted – for example missing out on inheritance or their childhood home being sold without their knowledge.

Danielle: “It’s great to see that many people living in the south of England have a will in place – but we need to see a higher will uptake, and for those that have a will in place, it’s paramount that they review these frequently.

We offer a friendly professional service in both our New Milton and Lymington offices and we would be happy to review your current Will or help you put your first Will in place.  To book your appointment please contact us on either 01590 689500 or 01425 610078

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Our new address is Heppenstalls Solicitors Ltd, 49, South Efford House, Milford Road, Lymington. SO41 0JD. (We are just behind Otters Nursery)

All our other contact details remain the same, so please do call us on 01590 689500 or enquiries@heppenstalls.co.uk to get in touch.

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10.00-12.30 on 27 September 2019.

Feel free to pass by and refuel at any time during the morning. Calories do not count on a Friday!

Our baking staff are preparing an array of tasty treats again this year, so please come along, drop in, pass by and support this brilliant charity event.

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Mrs T came in to see us regarding obtaining a Lasting Power of Attorney (LPA). She wanted to get both the Property and Financial LPA and the Health and Welfare LPA. She understood that one allowed the Attorney/s to deal with finances and her property and that the other allowed them to make decisions about her care and medical treatment.

She had 2 children. One lived locally and she saw her very regularly and the other lived about 200 miles away. She trusted both of her children completely and would have been happy for both to act as Attorneys if it weren’t for the fact that they do not get on. She was concerned they would not be able to agree when action needed to be taken but she was also concerned not to offend either of them or to show any sort of favouritism.

In discussion it transpired that one child lived locally and had to been informally assisting her with her finances for some time. The other was also helpful but lived further away and so was not available day to day.

LPA Attorneys can either act jointly or jointly and severally. Jointly is restrictive in that both have to agree on every decision. Jointly and severally means they can act together or separately. It was suggested that if they really could not work together in any capacity that one should be nominated as the Attorney and the other as a Replacement Attorney. The daughter who lived locally was the obvious choice for Attorney. If something happened to her so that she was no longer able to act, then her other daughter could act. The fact that she was still named on the paperwork as a Replacement Attorney was sometimes enough to give comfort and for the parties to still feel involved.

If you would like to talk about these issues or similar matters, please do call us on 01590 689500 or 01425 610078.

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