News

Aug 13th, 11:32
Our lives and the Mental Capacity Act 2005

People often have strong views on quality of life and life sustaining treatment. It is common to open a newspaper and see articles about relatives pleading the cases of their loved ones seeking authority to withdraw life sustaining treatment. However, sadly it is often the case that our own wishes are never expressed to our relatives and perhaps fundamentally not reflected on a legal footing. Why is it that we make a Will to ensure our wishes are reflected upon our death, but fail to address what our intentions are should we lose the mental capacity to make a decision about our care for ourselves.

The Mental Capacity Act 2005 is key piece of legislation governing issues which may affect people who lack mental capacity and those authorised to make decisions on their behalf.
The fundamental principles of the Mental Capacity Act 2005 are as follows:-
1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
In the case of ‘R (Burke)’ the Court of Appeal stated, amongst other things, that the right of self determination does not give a patient the right to demand and receive particular treatment, because a health care professional has a common duty of care to take such necessary steps to keep the patient alive.
However, the Mental Capacity Act 2005 creates two exceptions where a patients wishes will be valid and effective. The two exceptions are:

1. Advance Directive (commonly known as a ‘Living Will’):

An Advance Directive is a written document detailing a person’s intention regarding future medical treatment.

2. Lasting Powers of Attorney

A Lasting Power of Attorney is a document whereby a person gives somebody else the legal authority to make decisions on their behalf.

(It is however important to recognise that these two exceptions will only be deemed as valid if ‘contemporaneous refusal’ is give. Contemporaneous refusal is without undue influence and made with informed consent.)

If you are interested in discussing any of the matters raised or would like more information on advance directives or Lasting Powers of Attorney then please do not hesitate to contact Gina Ormesher or Nikki Doherty in our Private Client Department.

Jul 9th, 12:58
BREAK CLAUSES

Break Clauses are provisions contained in commercial Leases enabling one party or Sometimes both to bring a Lease to an end on a specified date by one party giving notice to the other.

In difficult economic times such clauses can be a lifeline for hard pressed Tenants however great care must be taken when exercising a Break Clause to ensure that all preconditions are complied with.

The Tenant must make sure that he has got the right to serve the notice, serve it on the correct Land lord, make sure it is served at the right time, deal with any specific requirements and continue to comply with the Tenant Covenants particularly paying the rent.

The Land lord when in receipt of a notice purporting to exercise a Break Clause will want to check that it was served properly and on time, that it is correctly addressed and is not defective in any other way. If a Landlord acknowledges receipt of a defective notice, that could have the effect of righting the defect.

A Break Clause provides one way to bring the Lease to an end early and therefore it is of vital importance to make sure it is done properly so the opportunity is not lost. We at Seymours can provide advice and assistance to you in dealing with Break Clauses either as a Tenant or a Land lord – please contact Rob Fardoe Head of our Commercial Department for further information.

May 11th, 11:05
Shared Residency Orders

Parents who are involved in Contested Residence/Contact proceedings should take note of the increased willingness of the Courts to order that Shared Residence between both parents is more appropriate then granting Residence to one parent and Contact to the other.

In the past Shared Residence Orders were rare and it was accepted that Shared Residence was only likely to work in situations where both parents were likely to co-operate closely to make the arrangement work. That view has now changed.

Recently there have been a number of cases reported to the legal press where the court has expressed its order in the form of Shared Residence even where there has been a high degree of conflict between the parents.

Many parents are surprised to hear that Shared Residence will often be ordered when children spend an equal amount of time with both parents.

For more information and advice on the issue of Shared Residence please contact a member of our Family Department.

Mar 22nd, 14:36
Make or update your Will for FREE!

Seymours Solicitors are proud to announce that they work in conjunction with Cancer Research UK to offer the opportunity to update your Will or create a new Will free of charge.

The service is available to individuals or couples over the age of 55 years old. In respect of couples, only one person needs be over the age of 55.

The Cancer Research UK FreeWill Service is presented in the hope that you leave a gift (also known as a legacy) to them in your Will.

Cancer Research UK conducts almost half of its research from such legacies. The research is to progress the prevention, treatment and cure of all forms of cancer.

Cancer Research UK and Seymours believe that every gift makes a difference. There are three standard forms of gifts which you may wish to consider:

* A gift of money (the amount is up to you)

* Specific items of property (e.g. stocks and shares, property or even jewellery)

* A share of remainder of your estate once you have made sure people you care about are looked after.

If you are interested in the Cancer Research FreeWill Service provided by Seymours please contact Gina Ormesher or Nikki Doherty for more information.

Some small print:
(1) Gifts to charity are generally exempt from Inheritance Tax, Capital Gains Tax and Income Tax. (2) Cancer Research will not be provided with a copy of your Will, this will be stored with Seymours Solicitors. (3) Seymours are able to charge additional charges, if your wishes are particularly complicated or if tax planning is required but this will be discussed with you if appropriate.

Jan 27th, 11:08
Unintentional Surrender of a Lease

A recent Court of Appeal decision has confirmed that a Landlord can unintentionally accept a surrender of a Lease by the Tenant by taking actions in relation to the property which are inconsistent with the continuation of the Tenancy.

Whether this has happened will depend very much on the facts of the case. In the reported case the Tenant complained that the Landlord had failed to carry out repairs to the property and returned the keys to the Landlord.

The Landlord then redecorated, used the property for the parking of cars and allowed someone else to occupy the premises. Whilst this was going on he was maintaining in correspondence through his Solicitor with the Tenant that the Tenancy of the property was continuing.

On the facts of the case the Court of Appeal found that the Landlord had accepted the surrender of the Lease after taking into account all of the actions of the Landlord together rather than individually.

Landlords need to consider their position very carefully in such circumstances and advice can be provided by any member of our commercial team on this and other matters relating to commercial property.

Nov 20th 2009, 12:44
The Staff and Partners of Seymours support Children in Need

The Staff and Partners of Seymours enjoyed supporting the BBC’s Children in Need fundraiser on Friday 20th November 2009 by donating money to “dress down” (our own non uniform day!) and to buy cakes for elevensies (which stretched to eating cakes every hour of the day! It was a hard job but we went the extra mile for charity!!).

A total of £65.00 was raised.

Oct 30th 2009, 15:27
Stamp Duty Land Tax Holiday Due to End

The concession increasing the threshold for payment of stamp duty on residential property purchases from £125,000.00 to £175,000.00 is due to end on 31st December.

This measure was introduced by Chancellor Darling as a stimulus to the UK housing market. The controversial reduction in the standard rate of VAT from 17.5% to 15% was introduced at the same time and is due to end on the same date.

Stamp Duty Land Tax is a particularly unfair tax as it is payable on the whole value of a property transaction at the applicable rate once the threshold has been passed. This is unlike most other forms of taxation where the exemption or lower rates of tax apply on the portion of the taxable element below the threshold.

Once the concession has ended the applicable rates of Stamp Duty Land Tax will be:-

£1.00 to £125,000.00 exempt
£125,001.00 to £250,000.00 1%
£250,001.00 to £500,000.00 3%
Over £500,000.00 4%

It is important to bear these thresholds in mind when negotiating the purchase of a residential property.

For further advice on the impact of Stamp Duty Land Tax on your proposed purchase please speak to a member of our residential conveyancing team.

Sep 21st 2009, 14:52
Six-Month Paternity Leave Extended for Fathers

The Government has announced plans to extend the right to take up unused maternity leave to fathers for up to six months. The provisions will be available the second six months of the child’s life and will be an option if the mother has maternity leave outstanding.

Consultations will take place on new regulations that will give families greater flexibility in how they choose to look after their children.

Although an outcry over the cost of these measures from business groups is expected, the Government asserts that less than one per cent of small businesses will be affected and they will work with business to make sure any changes are introduced in a way that minimises burdens and gives them predictability in the provision of leave.

It is anticipated that this will give families radically more choice and flexibility in how they balance work and care of children and enable fathers to play a bigger part in bringing up their children.

The scheme will be introduced for parents of children due on or after 3rd April 2011.

Aug 14th 2009, 09:45
Seymours are pleased to announce the relaunch of the firm's website.

The website has been redesigned and updated. You can now access information about the services we provide and some interesting information about Seymours, from the company origins back in 1730 to the staff members working here today.

We have also produced a series of leaflets containing the information found on the Services pages of the website. If you would like copies for yourself, or to pass onto family, friends or colleagues etc, please contact us.

We are pleased to have worked in partnership with Image+ in redesigning the website and designing the leaflets. Image+ are a local firm with over 10 years experience working with businesses and organisations to enhance image and profile.
Visit www.image-plus.co.uk for further details.

Aug 13th 2009, 15:33
Lasting Powers of Attorney

Avoid elderly ‘snatch’ by state- make a health and welfare LPA

In April 2009, great-grandmother Betty Figg was snatched by social workers against the wishes of her daughter, her former carer. Social workers arrived with police and a battering ram to remove the 86-year-old woman suffering from dementia from her daughter’s house. The media quickly spread pictures and video footage of Betty being taken from the house in her wheelchair with a towel thrown over her head.

It seems social services did not agree with Betty’s daughter that it was in Betty’s best interests to be cared by her daughter in a specially converted room, in her daughter’s home.

Could this happen to you and your family?

There is a way that it can be avoided; by giving a health and welfare lasting power of attorney to a family member, social services are prevented from making care decisions. Without this document, social services can make decisions on behalf a vulnerable person, if they think they lack mental capacity and believe it is in their best interests. They do not have to follow what the family want and cannot be liable for their decisions.

Gina Ormesher, an Associate Solicitor at Seymours and a member of Solicitors for the Elderly, is encouraging all older people to plan ahead and make a health and welfare lasting power of attorney. ‘It is an important document and sensible to get advice about the choices you have. What happened to Mrs Figg may never happen to you, but if it does, you and your family will be glad you made the power.’