Legal practitioners recommend that everyone has a Lasting Power of Attorney. They provide rainy day insurance for situations like the coronavirus pandemic and allow you to choose who has the authority to look after your affairs if you are unable to do so.

What can I do if there is not a Lasting Power of Attorney?

If someone you know loses the ability to make decisions for themselves, and there is no Lasting Power of Attorney in place, it is advisable to make an application for Deputyship to give you the authority to look after their affairs on their behalf.

This process can be quite lengthy, sometimes taking over 6 months to complete. With the ongoing pandemic, this time-frame has been extended further.

What can I do if I need to make urgent decisions?

You may be able to make some decisions yourself, without having to revert to a court for assistance. When making such decisions, the key is that it must be in the best interest of the individual concerned. We recommend that you always seek advice to ensure you are acting within the remit of any relevant legislation and are not vulnerable to prosecution.

There are some decisions for which you will need to make an application to the Court of Protection.  The application you make will depend on what you are asking the court to make a decision about.

Finances – If the decision relates to someone’s finances, you will always need to make a Deputyship application. The application would need to state that there are urgent matters that need to be considered. Urgent matters may include accessing a bank account to pay bills or authority to complete a property transaction which has stalled.

Health and Welfare – If the decision relates to someone’s health and welfare, it may be necessary to make an emergency application to the court. Such applications usually relate to medical treatment (including whether to switch off a life support machine or not), removing someone from their home or the deprivation of their liberty (having to confine them in an institution). For such applications, forms still need to be completed but it is recommended that you speak to the court prior to lodging any application. In practice, this application will be much quicker than a normal Deputyship application.

An urgent application to the Court of Protection is not necessary if you are simply trying to assist someone who is vulnerable and has their movement restricted because of the pandemic. If you find yourself wanting to help someone in this position then a General Power of Attorney may be a more suitable option for you. Please click here for more information.

Do I still need to apply for Deputyship if I only need a decision on one matter?

If the decision relates to finances, then the answer is likely to be yes. If someone cannot manage their affairs now, then it may be that they will not be able to do so going forward or at least for some time. As such it would be advisable to obtain a Deputyship. This can be revoked if and when the individual can make their own decisions again.

If the decision relates to health and welfare, then a general Deputyship order may not be appropriate. The Court of Protection will only grant such a Deputyship in very limited circumstances.

Are the courts still open?

Courts continue to operate a best as they can. Urgent applications continue to be heard and are given priority. Such hearings take place by telephone or video conference and it is likely that this will continue for some time.

It may be the case that a hearing is not even necessary and the court can make a decision based on the evidence that has been submitted. In our experience the courts are acting as swiftly as they can to ensure that applications are dealt with efficiently.

The pandemic has caused standard Court of Protection applications to be processed more slowly. This may mean that you need to submit an urgent application in the meantime so as to allow you quicker access to an individual’s affairs.

Urgent applications have to be drafted and submitted in a short frame of time and are often complex. As such we would always recommend that you seek professional advice prior to making any such application.

LEGAL ADVICE

If you require legal advice or assistance to make an application to the Court of Protection, request a Deputyship or execute a Lasting Power of Attorney please contact Sangeeta Rabadia to arrange a Consultation.

As we begin to emerge from lockdown, family issues that were put on hold are beginning to resurface and we are being asked what options are available to resolve disputes that cannot be settled through agreement.

Are the Courts hearing cases?
Even before COVID-19, the courts had an overwhelming case load to work through. They are now functioning at reduced capacity due to being short staffed, with the judiciary and clerks adapting to new ways of remote working.

With limited options for court hearings to take place in person, cases are being adjourned or relisted at short notice, often to a date several months away or more.  The current case backlog looks set to continue for the foreseeable future and will leave many cases in limbo.  Those left without a final outcome will be unable to make any real progress through the court system for some time.

Where does that leave people who want to reach a swift conclusion?
It is not surprising that our clients are increasingly looking for alternative methods to resolve issues that are already before the court or about to commence.  Whether the dispute relates to financial matters, property or arrangements concerning children, arbitration is an option that we are increasingly suggesting.

What is family arbitration all about?
Arbitration is a formal process that involves an impartial adjudicator who resolves the dispute in a private tribunal.  It is a process that can be used to resolve single issues as well as fully contested matters.

How does it work?
Arbitration is a voluntary process and both parties must agree to use arbitration to settle the issue(s) between them.

You can choose which arbitrator you wish to use based on their areas of expertise.  If you are unable to agree, there is a process available which will enable an arbitrator to be appointed for you.

During arbitration you present your case to the arbitrator who will make a decision that is final and legally binding.  A solicitor can advise about the process of arbitration and whether your dispute is suitable.

Is Arbitration suitable for child related issues?
Yes, providing there are no safeguarding issues. Since July 2016, arbitration has been available for children issues such as:

• where a child should live;
• contact arrangements;
• educational or religious issues;
• disagreements over a child’s routine or non life threatening treatment;
• disagreement over a holiday abroad;
• relocation within England and Wales and some international relocation (depending on the destination country in question)

There are some issues that cannot be determined by an arbitrator such as:

• child abduction;
• where the disagreement relates to an application to return a child to England and Wales from another country;
• where there is a dispute over the administration of or management of life changing or life threatening treatment;
• where a party lacks mental capacity or is a minor.

What about financial disputes?
Yes, these too can be resolved through arbitration with the added benefit of being completely confidential.  The process can be used whether you are/were married or living together.

What are the benefits of arbitration?
Arbitration is well suited to the ‘new norm’ of remote hearings via Zoom or Skype.  Many arbitrators will be experienced solicitors or barristers who are all currently using remote platforms to attend hearings and represent their clients.  Arbitration offers a wealth of benefits including:

1. You choose the arbitrator
2. Your arbitrator will hear the case from start to finish, ensuring consistency, which is often not possible in the court system
3. You will not have to attend a congested court, where time is at a premium, and you will not be competing with other cases on your arbitration day. You can be assured that you will have the arbitrator’s whole attention
4. It is private and the award (for financial issues) or determination (children issues) is never published, therefore confidentiality is guaranteed
5. The decision of the arbitrator is binding (just like a court order) which gives both parties certainty
6. The process is flexible and the parties can effectively decide upon the speed at which their case progresses
7. You can choose where the arbitration will be heard. This can be at the arbitrator’s office or at a solicitor’s office. It offers a more relaxed experience for all parties
8. In the long term, an early decision to arbitrate will enable both parties to avoid protracted and expensive court-based litigation
9. If you both decide that an issue can be decided purely on paper, an arbitrator can consider the issue in hand and provide the award or determination in writing without seeing either of you in person
10. You will receive the written award or determination from the arbitrator within 28 days, but often sooner. It is not uncommon to wait several weeks or sometimes months for a court to hand down judgment if it is not given on the day of the hearing itself.

It is also worth noting that you can apply to the court for an order to be made in the same or similar terms to the adjudicator’s award or determination, although this is not necessary.

What are the disadvantages?
As with all processes, what is considered an advantage by one person, may be a disadvantage to another.  A key point to note is that because the decision is binding, there are limited grounds to appeal an award or determination if you are unhappy.

What about the costs of the process?
Arbitration is usually less costly than court litigation, but this does depend on certain variables such as the fees of the arbitrator, or arbitrators, and whether you represent yourself or attend with legal counsel.

It is normal to share the fees of the arbitrator equally, although the arbitrator does have some discretion to order one party to pay more if their conduct during the process has been extremely unreasonable.

Is it for you?
In uncertain times, it is well worth exploring the benefits that arbitration has to offer, particularly when a court-based approach can be littered with delay.  Delay can increase legal costs and personal anxiety, which is unhealthy for anyone coping with family breakdown or trauma.

LEGAL ADVICE

We have highlighted arbitration as an effective alternative for those who would otherwise go to Court, but there are other Alternative Dispute Resolution (ADR) options available.  If you wish to explore whether arbitration, or another method of ADR, may be helpful in your case please get in touch with us at Allard Bailey Family Law.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.

 

When decisions are being made about how to split your assets, property is usually a key consideration.  Whether you own one property or several properties, you need to determine whether they should be retained or sold.

With estate agents returning to work in mid-May, the housing market is open and viewings are resuming – albeit cautiously and with the necessary precautions.  This is promising news, but these are unprecedented times.

Despite initial reports of a rebound in potential purchasers since lockdown measures were eased, the property market remains uncertain. Many people are still concerned about their job security which could affect their desire and ability to move. Lenders may also become more stringent in their requirements for lending which could affect mortgage capacities. These factors could bring volatility to the property market and prices.

Even those with substantial assets, who do not need to sell any property to reach a fair settlement, may struggle to agree how property should be distributed if estimated values fluctuate.

For many divorcing couples, the family home will be their main asset.  Where sale of the family home is required for you both to be able to rehouse appropriately, a stall in sales could result in you being left in limbo.  During this time, try to take a realistic and pragmatic approach to address the situation. One of you may be able to rent alternative accommodation for a period of time.  If you do not have the income to do this, it may be possible to release equity from the family home.  Whatever arrangements are made, it will be helpful if you are understanding and work together to try to find an interim solution that is fair to everyone.

Where an order for sale is required, you may wish to consider including provision for each of you to receive a percentage of the net proceeds of sale rather than a fixed amount.  This would help to ensure that any risks or benefits of housing market fluctuations are shared.

LEGAL ADVICE

At Allard Bailey Family Law we can help you to lead negotiations with your former partner and reach a temporary or permanent financial settlement out of Court, if possible.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.