Are lawyers about to disappear from the high street? Are we going to have to introduce different ways to deliver legal advice – by email or telephone? Is it going to become an expensive luxury to actually sit down face-to-face with a solicitor?
The Co-operative Society have recently announced that it has recruited 3,000 high street family lawyers without saying what that might mean for those high street practices. If they are lost from the high street, what does that mean for the future of family law? Is it going to become an unaffordable luxury to actually meet with a family lawyer face-to-face? Are you going to have to deal with your very personal problems over the telephone and via email only? Do people actually need that personal contact? I think they do. I think it is actually very difficult to give help and advice without being able to physically see the person to whom you are speaking. It is difficult to gauge how someone is feeling on voice alone and who wants to discuss very personal matters over the telephone?
Once you have had that initial meeting and established a relationship it is much easier to then go on and deal with matters over the telephone or via email and obviously email has the benefit of a potentially instant response.
Hopefully, high street family lawyers are not going to go the same way as HMV, Jessops or Peacocks.
I was actually cheered recently to hear of a potential tie up between Waterstones and Amazon. Amazon has surely been responsible for the demise of many high street book shops but now realises that they need book shops for their own survival. Without book shops to browse in, without the ability to pick up, look, feel, touch – in other words consider – a book, people are far less likely to buy one online. So in future you might be browsing in Waterstones and then from within the store make your purchase online via Amazon.
I think there is hope for a personal legal service to continue – it costs a lot less than you think.
Parents are increasingly having to get involved with their children’s divorce. Perhaps it is one aspect of the recession that parents are needed, not just as a shoulder to cry on but to provide financial support. This can take the form of paying the legal fees or more often lending money (perhaps that should be advancing the inheritance) to enable their child to either remain in the matrimonial home on divorce or to purchase an alternative property. I do not think that many parents planned to have to financially support their offspring through a divorce but, speaking as a divorce lawyer, it is always wise to consider the possibility (however remote) that your child might be involved in a divorce if you are thinking of giving them substantial sums of money when they get married towards a house purchase.
If for instance you want to help a child buy their first house, if they are buying it with a partner or a spouse, do make sure that your gift is protected by way of a charge on the property so that it is clearly a loan rather than a gift. Thus if something does go wrong and the parties separate you can at least recover your loan whereas you could not recover a gift. You are then free to a re-loan/re-gift that money at a later date to the same child.
If any money is gifted, should the parties get divorced, that money is in effect lost whereas if it is a loan it is repayable and you can recover it.
On a more positive note if you are seeking to help the child purchase a property, the Woolwich has just launched a new mortgage product enabling buyers to purchase a property with financial support from their parents or other family members. This is perhaps a much needed recognition of the increasing role that parents are playing in financing properties for their children, whether it is because of initial difficulties getting on the property market or as some form of rescue as a result of divorce.
The mortgage comes in two parts whereby the borrower takes out a family spring board mortgage and pays a deposit of 5% of the purchasing price and then the family member or helper opens a helpful start account into which they deposit a further 10% of the purchase price. The account is then locked down for a period of three years and provided the repayments on the mortgage have been maintained during that time, the funds are then released to the helper together with interest once the three years is up.
The helper is not responsible for maintaining the mortgage payments and has no rights over the property so they may lose all or some of their funds if the mortgage repayments are not maintained. It may be possible to protect this by way of a second charge although lenders are notoriously wary of this as it impacts on their security.
This is perhaps a facetious comment, but it reflects the deep suspicion with which many lawyers are viewing the arrival of alternative business structures. But what does this mean for the non-lawyer? Well, the Government would say that it means a better deal for consumers. It means that different businesses can provide legal services. So instead of the traditional view of lawyers that they overcharge the public for legal advice, because only a few people are currently qualified and able to give legal advice, the legal advice market is being opened up to almost all and sundry.
Although the relatively new body, the Solicitors Regulation Authority (SRA) would say that they would be regulating any new applicant, they haven’t yet said how they are going to do that.
Cotswold Family Law
This means that non-lawyers will be able to give legal advice. They will be “regulated” in some way, but we are not quite sure of the details yet.
At the moment the Co-op are able to give legal advice to their members because their “members” are not the general public as a whole and so they are not considered to need the protection of a full regulated legal advice system under which solicitors operate at the moment.
It has just been announced that BT are planning to enter the legal market and have applied to become an alternative business structure for this purpose. The legal work will be done by BT Claims, a wholly owned subsidiary of BT.
Not only do lawyers have to undergo fairly rigorous training and pass exams, as do accountants, architects, chartered surveyors and various other professions, but their conduct is open to scrutiny. As we hold client money we have to be completely above board and every year our accounts are thoroughly checked by an independent body to ensure we are doing what we are supposed to be doing and the law society ensures that the legal advice we give is of a suitable standard.
You wouldn’t particularly want your house surveyed by an unqualified person or designed and built by people without qualifications. If it were, you would expect a lower standard, albeit possibly cheaper.
However, we all know examples of specialist providers who know their business inside out and can give unlimited free advice – they often turn out to be cheaper than buying the same product at a supermarket or large retailer with very little help advice or guidance.
Just before Christmas I wanted to buy a bottle of sherry – for the first time in years. I had no idea what to buy, but I happened to be in Norfolk and went into a specialist retailer and met somebody who enthused for some half an hour about sherry – the different types, what I would get for my money and I was offered an array of some twenty different types ranging from about £6 to about £30. I chose an obscure brand on the man’s recommendation for £9 and it was excellent!
The Co-op have made a profit of some £25m on their legal service provision in the last five years. I am sure in many ways it is an unstoppable side of progress. For some reason Tesco, Sainsbury’s, etc make an awful lot of money providing us with food. We use them because we think they provide a good service, a wide selection of products at the cheapest possible price. However, I don’t think we go to a supermarket for advice about a bottle of sherry or an electrical product. So I hope specialists remain appreciated and in business and of course that people continue to choose lawyers to provide legal advice.
What is so special about our offices, situated as they are in beautiful countryside on the Warwickshire / Oxfordshire border, with amazing views over the Feldon Valley and, somewhat amazingly, a herd of Water Buffalo. Well, for a start there is ample free parking, they are easy to find, just off the main Shipston to Banbury Road, and they really do offer a place away to discuss your particular problem. You will not have to struggle to find a parking place, the setting – in a converted grain store – is unique and offers a calm and tranquil setting. There are plenty of original exposed beams – but we do have disabled access if necessary!
We offer a free initial meeting and great coffee.
If you have any family related issues and just want to talk these through, or you are seeking general advice – please come and talk to us. We offer a range of expertise in all aspects of divorce, children issues, separation, Wills, probate, Lasting Powers of Attorney and Court of Protection work.
LASTING POWERS OF ATTORNEY – WHAT ARE THEY AND WHAT ARE THEY FOR? ARE THEY FOR YOU?
It could be said that a Lasting Power of Attorney is the natural extension of making a Will. People make a Will to clearly set out what is to happen to their possessions when they die, but also to make the practicalities of life easier for those left behind. A Lasting Power of Attorney can be made by, say, parents in mid to old age and helps both them and their children should they become incapacitated for any reason. This might be classically as a result of old age, becoming forgetful, or even getting dementia, but it may also be something temporary such as a stroke or having a fall and breaking an arm or a leg. Suddenly the person can no longer sign cheques or make important decisions.
A Lasting Power of Attorney is made when the individual is of sound mind and wants to prepare in advance for when they cannot make decisions or deal with their own affairs in a way that they would want to. You can appoint one of your children to act as your Attorney and give them either a general or specific power. A general power allows them to deal with all of your affairs, a specific one could be limited, for instance to accessing just one bank account or whatever.
The process is relatively simple, the person making the Lasting Power of Attorney (the Donor) needs to be seen by a certificate provider, who could be the solicitor drawing up the Lasting Power of Attorney or their GP who assesses and confirms that they are able to make the Lasting Power of Attorney, an Attorney or Attorneys are appointed and very often the person making the Lasting Power of Attorney names someone who is notified when the Lasting Power of Attorney is registered, or becomes activated, by being registered with The Court of Protection.
Cotswold Family Law
If the person who is making the Lasting Power of Attorney does not feel it appropriate to register it straight away, then the forms are completed, but not registered with The Court of Protection. Should the Attorney need to act, the form is then registered with The Court of Protection, which carries a fee of £120.00, the person nominated to be notified is served a Notice and can object to the appointment of the Attorney. If no objection is filed then the Attorney is appointed and acts on behalf of the person making the Lasting Power of Attorney in the way set out in the document.
Most Lasting Powers of Attorney are related to finance and property. You can have a social and welfare one which, for instance, deals with issues surrounding resuscitation if the person is severely ill in hospital, or for any other particular wishes in this area that the Donor may have.
If you do not make a Lasting Power of Attorney and, say, the elderly person becomes confused or unable to sign a cheque, unable to pay bills, unable to manage their affairs generally, there will be problems. They may have to go into a home where fees will have to be paid and other arrangements made. If there is a Lasting Power of Attorney which is not registered it can be registered at this point and the Attorney can act fairly quickly to deal with the situation. If there is no Lasting Power of Attorney then the only way anybody can act on behalf of that person is by making an application to The Court of Protection to be appointed as a Deputy. This is a far more complicated procedure and so more expensive. The court fee is £400, but the forms and application procedure is a lot more complicated and if a lawyer is acting, their charges would generally be in the region of at least £500 to £1,000, possibly more if the estate is complicated. Unlike a Lasting Power of Attorney, applying for Deputyship in this way requires a lot more information. Full details of the person’s assets have has to be filed with The Court of Protection on numerous fairly lengthy forms. The appointment is far more rigorous and a Deputy is required to file annual returns with The Court of Protection detailing each and every movement of assets within the person’s estate. Quite an onerous responsibility.
So, just as you need to make a Will to make things easier for those left behind, so too you need to make a Lasting Power of Attorney to make it easier for your relatives to deal with a situation of sudden short term infirmity, or the onset of Alzheimer’s, Dementia, incapacity due to old age generally. Those of you with elderly parents should discuss Lasting Powers of Attorney with them and consider having them in place, even if you don’t register them straight away. Once the document is made it can be registered as necessary. A simple procedure that avoids the involvement of The Court of Protection for that person’s affairs.
From 6th April 2011 everything changed, or was said to have changed, in the family courts. All the court forms were changed and the major innovation was the introduction of mediation – as though mediation something new! Everyone contemplating a divorce or separation will have been through some form of mediation, even if they may not have referred to it as such. Nobody decides to separate or end a marriage quickly and it is generally a rather slow and painful decision and there are consequences good and bad to consider in ending that relationship.
Even when parties reach their lawyers, most family lawyers are members of Resolution, if not Collaborative Lawyers, and they will always try and negotiate a settlement. Mediation is not new!
Obviously most people would want to negotiate a settlement, it makes sense to try and reach your own solution rather than having one imposed by the courts. But sometimes that is not possible – the other party might be bullying or manipulative, or just simply refuse to cooperate. How else then do you get what is due to you other than by going through the courts?
Generally though, particularly where children are involved, it is far, far better to try and bring everybody round a table actually or metaphorically. Parents need to be able to get on post separation if there are children. Whatever the grievances between you, you need to be able to communicate to make on-going arrangements about the children and you owe it to them to be as civilised as possible.
Is the new regime at the court helping all this?
Well, it seems not as it seems to have just confused everybody – not just because all the forms have changed, but because the term “mediation” can mean anything and nothing. Like most bureaucratically imposed solutions it is rather a tick box format whereby parties have to be referred to mediation. There is now a shortage of mediators, so not all mediators will be adequately trained and able to give as good advice as a family lawyer. Far more cost effective would be to use the collaborative approach, whereby from day one you agree to do everything collaboratively, together, as transparently as possible and as constructively as possible. Instead of solicitors letters which so often enflame, just straightforward discussions that get to the point about “what is to be done”.
Everyone has financial, emotional and practical issues to resolve and the sooner these are dealt with constructively the better. Mediation is great if it can lead to a resolution, not if it is simply yet another hoop for people to have to go through before they can deal with the consequence of separation.
Let’s hope the new regime will actually work out better than it suggests. Is it just a Government imposed way of trying to reduce the number of people going to court and the cost of this?
When people separate they are generally going through enormous distress and anxiety, so how can it be in any way good? There is the point that although the process can be a very painful one, for some people they end up in a better place emotionally. The relationship, for whatever reason has not worked and moving on to be alone and comfortable with that, or to be with a new partner is often far better than staying in a difficult and possibly destructive relationship.
Nevertheless if there are children both parents will fear losing contact with the children. Often there is an assumption that the children will stay with their mother. But women still worry about losing their children in some way. The children may spend time with their father who, if he is the breadwinner, may have more resources to give the children a better time, or so the mother fears. So there is anxiety for both parents. Added to that, children will notice difficulties between the parents well before you think they do. So try and focus on the children as soon as possible and this may help to be able to work towards separating on better terms.
In order to separate better, to achieve if not a good at least a less awful divorce or separation, parents need to realise that if they can work together in relation to what is going to happen to the children, then neither of them will in any sense “lose” the children.
Collaborative law, whereby from the outset parents agree not to go to court and to do their best to cooperate, often sitting round a table together, to find solutions that best suit their particular situation must be a better way. Inevitably when parties separate there is less money, there is no solution which will enable the parties to be in exactly the same position financially as when together, you will inevitably be worse off financially. But that does not mean that solutions are impossible, there is generally a way to ensure one way or another, that both parents can be adequately rehoused, and in such a way that both parents can have the children staying with them.
Most importantly though, if parents can work together in relation to the arrangements for the children, both parents can then play a significant part in the rest of the children’s lives. Every parent will want to be able to attend school events, university graduations, weddings and any other significant family event. You may not be best friends with your ex-partner, but it would be good to be able to attend those joint family occasions after you have separated.
So right from the outset there are a lot of good reasons to make a commitment to collaborate in some way. To work out with the help of collaborative lawyers, mediators or other advisers how to arrange your finances so that although you are living separately you can in a way you decide together co-parent the children for the rest of their lives. It has got to be worth making the effort from the outset to do this for yours and your children’s sakes.