Clarke and Son News

One of the first decisions of the new Supreme Court (which last month replaced the House of Lords as the highest court in the land) will be a disappointment to many bank customers who suffered high level of charges after they exceeded agreed overdraft limits.

The Court accepted the banks’ argument that the Birtish tradition of free ‘in credit’ banking (rare elsewhere in the world) was only possible because charges levied on those who go overdrawn.

The decision does not preclude the possibility that the Office of Fair Trading could challenge the fairness of other aspects of bank charges, but it does mean that tens of thousands of customers who had pending applications for refunds of charges will now not receive them.

For private customers who do not go overdrawn on their current accounts, the decision may well mean that free banking will continue.

Earlier this month, the banks announced a pland to phase out cheques: they already charge business customers up to 65p more for writing a cheque than paying a bill electronically.

Recent weeks have seen prominent and harsh criticism in the media of the Court of Protection and Public Guardian.  These two bodies are responsible fro the property and affairs of some of the most vulnerable people in society, those who lack capacity to deal with these matters themselves.  They therefore have a vital function to perform and it is of the utmost concern to a civilised society that these public bodies do not appear insensitive, secretive, bureaucratic and inefficient.

Clarke & Son LLP, a member of Solicititors for the Elderly (SFE), is one of its thousand plus members who deal with this area of law on a daily basis.  SFE share the concerns and frustrations of their clients and often act in their own right as deputies for adults and children who lack capacity.

The legal and administrative system provided by the Mental Capacity Act 2005 is not a perfect one by any means.  But it rests on a powerful premise.  No one person has the right to take the property of another person who lacks capacity unless either that person has autohorised this in advance, through a lasting power of attorney or the Court of Protection has given that authority.  Not everyone has had the foresight or desire to plan ahead with a lasting power of attorney, especially as the new forms require a degree of determination to complete.  The court must also deal with the property of children who will lack capacity, often where there have been compensaton awards for catastrophic injuries.  It deals with over 6,000 applications each year and it cannot just give authority every time someone asks for it.  There has to be a procedure that shows that a person lacks capacity and that the deputy who is given authority is the right person to take on a great responsibility and that the interests of the person who cannot speak for himself are protected.

There is of course a difficult balancing act for any public body to perform.  If it is too restrictive in what it allows, it is condemned for being paternalistic and bureaucratic; if it gives away authority without proper checks, it is condemned for being heartless.  In reality it must also contend with limited resources which must be raised through fees and charges.  These fees are significantly lower than they were in the past, and in the vast majority of cases the annual supervision fee charged by the Public Guardian is £175.

Difficult cases make for alarming headlines.  But in the great majority of cases, the Court of Protection appoints deuputies as a matter of course and close relatives are given a wide ranging authority to administer considerable assets.  This usually extends to selling a person’s property and deciding where and how to invest money.  The only safeguards are an insurance policy and completion of a short annual report to the Public Guardian.  Most cases are dealt with efficiently, through a simple paper-based procedure.  And most cases do work reasonably well in practice.

 This success - which is at odds with media criticism - avoids wider concerns that a system which is too causal in its approach allows the unscrupulous and the incompetent to cause a great deal of damage before it can be discovered.  The Public Guardian is a separate body from the Court which has very limited powers of investigation and enforcement.

 The Court of Protection meanwhile is a judicial body which is bound by rules which belong to a world where wealthy protagonists can litigate with no regard to how long they take or what costs they incur.  Those cases that do go wrong, or where there are objections and different points of view in the family, are subject to a very different procedure that really is daunting as well as expensive.  Cases move into a labyrinthine world involving forms and procedures that are daunting for lawyers, let alone concerned realtives.  Cases frequently involve several opposing parties, solicitors, barristers, trial bundles and days in court where the costs are so great that there is a real disincentive to use the Court of Protection except as a last resort.

These are issues that the Court are aware of and members of Solicitors for the Elderly are engaged with both bodies, bringing constructive criticism to bear where it is helpful, and trying to share the concerns of its members and the wider client case they represent in providing better protection for those who cannot by definition protect themselves.

Nia Wharry, Head of Wills & Probate at Clarke & Son and a member of Solicitors for the Elderly said:

“The Court of Protection plays a central role in protecting the vulnerable from financial abuse.  There clearly have been teething problems but Solicitors for the Elderly togenter with other professional bodies have been sharing their concerns and working to help resolve issues.”

For more information on the Court of Protection or advice on Powers of Attorney, contact Nia Wharry on Tel: 01256 320555.

For further information about Solicitors for the Elderly, please visit http://www.solicitorsfortheelderly.com/public/

The following views relating to Home Information Packs (HIPs) post a General Election next Spring have been communicated by Rob Hailstones of the Home Information Pack Action Group (HIPAG).

Grant Shapps has recently reiterated his intention to ’scrap’ HIPs.  What he hasn’t said publicly, is whether he will amend or replace them.  However, the Conservatives have made it clear that they want to improve the home buying and selling process. It is therefore, highly unlikely that Mr Shapps will allow us to go back to the home buying and selling process, as it was, pre-HIPs.

 When the Conservatives held their own home buying and selling review last year it was made clear to them, by Owen Inskip and Kirstie Allsopp, that whatever format the HIP eventually takes, providing ‘information up front’ will be essential.  As an ex-conveyancer I believe we should build on the developments made over the last few years so that creating a property legal pack, that is as ‘exchange ready’ as possible, should become standard practice.

It has to be accepted that the political situation is not as clear as it was a while ago, the Conservatives winning with a safe majority is not a forgone conclusion.  Mr Shapps might not even become Housing Minister and scrapping HIPs will probably be way down the Conservatives ‘to do’ list, after Afghanistan, the economy, health, education etc.  Some pundits now forecast a March election but it would appear that the safe money is still no an election in May.

Whatever the outcome politically, I believe HIPs will either be with us for a while or any worthwhile replacement pack will still require the involvement of a good HIP provider and a local solicitor/conveyancer.

 Paul Cowdery of Clarke & Son LLP adds:

I share the view of HIPAG that a meaningful property legal pack does help in the initial stages of the conveyancing process.  I do not believe it should be a critical feature which will delay marketing and I do not think it should include local or drainage searches as is presently the case.  Results to those searches can be obtained quickly by the purchaser’s solicitor once a buyer is found.

For more information on HIPs, or buying and selling your home, contact Paul Cowdery on Tel: 01256 320 555.

The High Court has confirmed that a Solicitor’s Undertaking is something that the party to whom it is given should be entitled to rely on absolutely.

The decision reaffirms the importance of Solicitors’ undertakings in the conveyancing process and emphasises that undertakings should always be appropriately qualified and unequivocal.

A buyer that accepts a solicitors’ undertaking should be entitled to rely on it knowing that the solicitor will be compelled to comply with its terms.  If solicitors were able to delay complying with their undertakings because of  a dispute with a third party (save, perhaps, in very exceptional circumstances) it would undermine the sensible conveyancing practices that have evolved over time.

 For any queries on all services offered by Clarke & Son Solicitors, please email us or Tel: 01256 320 555

Saleem Arif from Quality Solicitors.com recently visited Clarke & Son’s offices to formally present the firm with the Certificate of Membership.

It was a great opportunity for Senior Partner, Peter Turner to find out more about how the company is moving forward.  Saleem explained that their promotion was moving away from just acting as a referral site and towards the ‘Quality Mark’ aspect of the company - so that anyone who uses a member firm knows they are getting a quality service.

Clarke & Son LLP was proud to be chosen as one of the 150 members of Quality Solicitors earlier this year, the only one in the Basingstoke area.  Quality Solicitors.com was also recently shortlisted for the Law Society Excellence Awards.

For more information on Quality Solicitors. com, please visit their website.