How to draw up a General Power of Attorney

Lawpack on March 27, 2020

A General Power of Attorney is a statutory form enabling you to authorise someone else to act on your behalf and in your name.

It applies only to your property and affairs and it cannot be used to authorise someone to make decisions concerning your personal welfare.

Drawing up a General Power of Attorney is easy to do as it’s a very straightforward document to complete.

Plus it does not need endorsing or countersigning by a solicitor to be effective.

Simply download Lawpack’s solicitor-approved General Power of Attorney form today and get started.

Here are our top tips on how to complete the General Power of Attorney form:

1. Start date

The Power begins on the date that the document is signed.

A General Power remains valid until it’s revoked, but it will be automatically annulled if you become incapable of making the decisions conferred by the Power.

Powers can be revoked orally, but to avoid misunderstanding it’s wise to write ‘cancelled’ on the original form or simply tear it up.

The General Power would also be revoked if you or the person you are giving the Power to dies or becomes bankrupt.

2. The ‘Donor’

The person who makes the Power and grants authority is called the ‘Donor’.

Only one person may make a General Power.

You must be over 18, have capacity to grant the Power and not be an undischarged or interim bankrupt.

3.  The ‘Attorney’

The ‘Attorney’ is the person you are giving the Power to. Due to the extent of the Power, you should only give it to somebody that you trust implicitly.

Anyone over 18, of sound mind and not an undischarged or interim bankrupt may act as an Attorney.

You can appoint one or more Attorneys.

If you are appointing more than one Attorney, they may be appointed ‘jointly’ or ‘jointly and severally’.

If you appoint your Attorneys to act jointly, it means that they must all make any decision together.

If you appoint your Attorneys to act jointly and severally, this means they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.

4. Signature

You should sign the General Power in front of a witness.

5. Witness

A witness should sign the General Power. The Attorney cannot act as a witness, but otherwise there are no restrictions on who may be a witness.

There is no requirement as to who should witness the power of attorney. There is no requirement that it be witnessed by a solicitor and the form is still effective if it is not.

6. Restrictions

Once the General Power of Attorney is granted, the Attorney has full legal authority to take decisions and actions on your behalf in relation to your property and affairs, as if you were taking them yourself.

7. Liability

You remain liable for the actions of the Attorney.

 

Other information

 

External information

The types of grant of probate

Lawpack on March 27, 2020

Executors have the power to deal with the deceased’s assets from the date of death.

But if the value of the deceased’s estate exceeds £5,000, then the executors will need to obtain a ‘grant of representation’ in England & Wales – called a ‘confirmation’ in Scotland – to prove their authority to those institutions and authorities that hold assets in the deceased’s name.

For estates that require a grant, executors only have authority to act from the date of the grant of representation or confirmation.

The different grants in England & Wales

There are three main types of grant of representation in England & Wales:

1. Grant of probate

A ‘grant of probate’ is issued if executors appointed under a Will are administering the estate.

2. Grant of letters of administration with Will annexed

If the deceased left a valid Will, but didn’t appoint executors or they are unable or unwilling to act, then a ‘grant of letters of administration with Will annexed’ is issued.

3. Grant of letters of administration

If the deceased died ‘intestate’ i.e. leaving no Will, then the Probate Registry will issue a ‘grant of letters of administration’.

In Scotland, there is only one form of confirmation.

The probate forms

In England & Wales, there are slightly different probate processes involved depending on which type of grant of representation you are applying for, but in practice, the probate forms are all used in the same way.

Different probate forms will be also required depending on whether inheritance tax is due.

The probate forms you will need to complete to apply for a grant or confirmation are as follows:

England & Wales

  • Form PA1 – Probate Application Form: The application for the grant of representation in England & Wales
  • Form IHT 205 – Short Form of Return of Estate Information: Used if the value of the estate is either less than £325,000 or less than £1,000,000 and there is no inheritance tax to pay because of spouse, civil partner or charity exemption

Scotland

  • Form C1 – Confirmation: The application for confirmation in Scotland
  • Form C5 – Short Form of Return of Estate Information: Used if the value of the estate is either less than £325,000 or less than £1,000,000 and there is no inheritance tax to pay because of spouse, civil partner or charity exemption

England & Wales, and Scotland

  • Form IHT400 – Full Inheritance Tax Return: Used if inheritance tax is payable.

 

  • Get all the probate forms you need – plus expert guidance – in our DIY Probate Kit.

 

Who issues the grants of representation?

In England and Wales, grants of representation are issued by the High Court through probate registries.

In Scotland, confirmation is issued by the Commissary Department of the Sheriff Court in the area where the deceased was domiciled at death.

Other information

 

External links

Letting to students: choosing a house share agreement

Lawpack on March 27, 2020

When deciding to let out accommodation to students it is important for landlords to decide on what sort of tenancy agreement to use.

The main choice landlords have is between joint or single shared tenancies, the benefits of which are subjective depending on your preferences and priorities.

In a joint tenancy, tenants have full access to all of the accommodation’s amenities with no one holding exclusive rights to a particular area. Tenants agree among themselves who will get which bedroom and one agreement is used to encompass all occupants.

With a tenancy agreement for a room, on the other hand, rooms are let out individually with tenants holding joint access to communal areas only. They hold exclusive rights to one room.

Under the Housing Act 2004, landlords should also familiarise themselves with the conditions of letting a House in Multiple Occupation (HMO).

The benefits of a joint tenancy

Joint tenancies are generally ideal for groups of people who already know each other and have a loyalty to one another.

This typically prevents one occupant from leaving the accommodation unannounced, placing pressure on its existing occupants to cover their fees and can make life easier for landlords as a result.

The benefit for landlords is that tenants are jointly responsible for all costs and must come to an agreement about how to deal with these themselves.

They also carry a lot or responsibility because if one or all of the them cause a loss to the landlord, perhaps by vacating without notice, the landlord can demand total arrears from any one of the occupants. This prevents the landlord from having to track down each individual.

Although students are exempt from council tax, it is worth landlords noting that under an Assured Shorthold Tenancy (AST), any other residing occupants are required to pay council tax directly to the local authority.

Under an AST, they will also be jointly responsible for paying utility bills directly to their providers.

If a tenant decides to leave, it is the obligation of the remaining tenants to ensure their rent is paid. In most cases, they will find a new tenant, but again, this is their responsibility and not that of the landlords.

If a new occupant is brought in, they must be signed up to a new joint tenancy agreement for the remainder of the term or start a new term.

When an occupant leaves, the matter of the deposit is another issue. The newcomer can pay their deposit to the leaver, allowing the landlord to keep hold of the original deposit.

Furthermore, under the custodial tenancy deposit scheme, landlords can choose whether to hold the deposit as one lump sum or break it down into individual payments for each tenant.

The benefits of a tenancy agreement for a room

Individual tenancies with shared facilities enable occupants to come and go as they please in either short or long-term tenancies.

The benefits of landlords issuing a tenancy agreement for a room to individual tenants is that the landlords then have the right to inspect communal areas without prior notice, whereas they do not have the right to ‘drop in’ unannounced on a joint tenancy household.

In most instances, the landlord is also able to charge higher rates of rent.

One of the minor problems with a tenancy agreement for a room is compatibility among residents. Because they are effectively strangers coming together with no prior friendship, they could clash or fail to make compromises for one another.

This clash could result in a poor occupant driving more reliable residents from the accommodation, which is often a disappointment for landlords.

Moreover, tenants are not jointly responsible for bills, meaning landlords risk picking up the costs of amenities if occupants turn out to be unreliable. However, the property owner can counteract this threat by including bill payments in the rent sum.

This outline is meant as a guideline only for landlords and is not an exhaustive list of the conditions of joint and individual agreements.

Download Lawpack’s tenancy agreement for a room, an agreement for an individual tenancy, approved by Anthony Gold Solicitors.

My husband’s left me. He’s the main breadwinner. How am I going to pay the bills?

Lawpack on March 27, 2020

Firstly, don’t panic! If you can’t agree to your husband giving you some money, then there are various things you can do to get some money from him.

1. Apply to the court

You will need to ask the court for something called a ‘maintenance pending suit’ as quickly as possible. This is because it can take a while to get a hearing date. In the meantime, you might find yourself without money, so you should consider whether you’re entitled to any benefits. If you do make a court application, a judge will expect you to have investigated the benefits position.

2. Try and keep up with your payments

You need to try and keep meeting all your financial responsibilities. You don’t want to adversely affect your credit rating, which is particularly important with your mortgage company. If your husband usually pays the bills, then you may need to check that he is still doing so. In order to make sure that you don’t miss your payments there are companies that will give you a loan and take the money out of your divorce settlement.

3. Cancel any cards in joint names

One thing that you shouldn’t do is to use your husband’s credit cards without his consent. If you have cards in joint names, then you should cancel them.

4. Discuss things with your spouse, if possible

The best way to try to sort things out is to discuss it with your spouse first and use the court as a last resort. You could also try mediation, if you find it difficult to talk to your spouse without arguing.

5. Apply for interim periodical payments

If you have no other alternative but to go to court, then you can make an application for interim periodical payments after you have filed your Divorce Petition. If you haven’t already filed a document called a Form E which sets out your financial position, then you’ll have to send a sworn statement to the court which sets out your financial circumstances. Your husband will also have to send information to the court about his financial position.

The court will look at all the evidence and there will be a hearing about the interim payments. Any order that is made will stop when your divorce is finalised with Decree Absolute.

Help from Lawpack

All the divorce forms you need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

If you need assistance in completing the forms, then you can use our DIY Divorce Service who will complete them for you. With our Managed Divorce Service they will complete them and also file them at court for you.

If you want more in-depth information from a divorce lawyer about all aspects of divorce law then read our guide, How to Get a Divorce by Punam Denley. Packed with tips and expert advice to ensure that you get through the divorce process smoothly.

Other information

Splitting up: Should we draw up a separation agreement?

Lawpack on March 27, 2020

Divorce lawyers say there is a lot of confusion about what separation is.

You can be separated but remain married. This period of separation can count towards the divorce, if you finally decide to divorce.

You can also be separated even though you continue to live under the same roof; this is called ‘living in two households’.

Some people believe that they are practically divorced, or that they don’t have to do very much to get a divorce, after they have lived apart for a number of years.

The truth is that you have to go through the same procedure no matter what the reason for your divorce, and it takes just as long.

If you divorce and get your financial split approved by the court, your former spouse can’t make any money claims against you in the future, apart from changing the maintenance.

If you separate, you can’t get any financial agreement approved by the court, so you are still at risk of money claims being made against you by your spouse for many years to come.

Do you need a separation agreement?

Some couples draw up a ‘separation agreement’, which sets out the following details about the separation:

  • The date of the separation
  • Who will bring the divorce petition (if appropriate)
  • Where the children will live
  • Contact arrangements with the other parent
  • The financial agreement reached between you on maintenance and capital.

It may also acknowledge that a property has been sold and how the proceeds have been divided.

Does the separation agreement need to be put in writing?

There is no need to put a separation agreement in writing, but it can be an important piece of evidence later if one of you wants to go back on it.

Generally, you have the basis of an agreement in relation to future arrangements such as maintenance payments.

If you want to put it in writing, then Lawpack’s solicitor-approved Separation Agreement is here to help.

The pros and cons of a separation agreement

One advantage of a separation agreement is that you can agree to split the money straightaway, without waiting for the divorce/dissolution.

If you have a separation agreement and you have agreed that your spouse will take on the mortgage, and take your name off it and the deeds for the house, you can buy a new place without having to wait for the divorce/dissolution.

One of the disadvantages of a separation agreement is that neither the court nor the couple have to keep to it.

In addition, when you do decide to dissolve your marriage or civil partnership, you will need to pay out again for the financial agreement being made into a document that the court can approve. This will mean a double charge if you have already had a lawyer draw up your separation agreement

One thing you might consider before signing a separation agreement is that if you have decided to split, why wait to divorce? You may as well get it over with. Renegotiating the money on a divorce/dissolution can open up old wounds.

Can I get the court to approve our separation agreement?

Generally, you can’t get these approved until you are divorcing, unless you are judicially separating.

There are no hard-and-fast rules on this, and there are cases which suggest that some people are held to these agreements, whilst others are not, for a variety of reasons.

However, if you fulfil enough of the criteria, you have a good chance of creating a binding agreement. Some of the criteria is set out below:

  1. Each of you should give full disclosure of your financial circumstances.
  2. Each of you should take independent legal advice.
  3. There should be an absence of duress, or pressure on one party to sign off on the agreement.
  4. Each of you should have time to consider your position.

The court can take many different factors into account and the above list is not exhaustive.

If you think that your marriage is over, and you want to finalise everything, financially you are probably better off getting divorced sooner rather than later.

A separation agreement is a good idea if you think you might reconcile and just want to put some interim arrangements in place, rather than taking the drastic step of ending your relationship.

Related articles:

Boost your income by renting out a parking space

Lawpack on March 27, 2020

Need extra cash during these hard times? Then renting out your parking space can be a great way of boosting your income.

If parking is difficult where you live, you can earn around £100 a month – and can even reach as much as £250 per month in the capital – for renting out a parking space.

The rental of parking spaces has boomed in the last few years. Since the introduction of the congestion charge the demand for parking spaces in London, in particular, has increased.

But it’s not only London where the demand is. With the enforcement of stricter parking restrictions, more and more people are looking for parking places.

But how do you go about renting out a parking space?  Find out more on how to advertise your parking space rental and what you can earn.

Can I rent out my parking space?

Yes, as long as the parking space is owned by you and not by a landlord or third party.

Remember that it doesn’t have to be a driveway. Renting out a parking space in underground parking in a block of flats is also very popular.

If I rent out my driveway, can I ever use it myself?

If you rent out one parking space on your driveway, you can, of course, still use the other. You could also rent out the parking space for a set amount of time (e.g. office hours) so you can use it at other times.

How much is my parking space worth?

The rental income you will get will depend, of course, on where you live and how much people are prepared to pay. London is always popular and most desirable in terms of rent.

The price will depend on various factors and how desirable the space is. This involves whether it’s close to a town centre or to transport links, such as train stations or major roads.

If your parking space is covered and secure, people with more expensive cars, or with vans full of expensive equipment, will find it more desirable.

If your area has parking permits, which are usually for residents in the area, then businesses may also be keen to get their hands on your parking space as permits may be scarce.

The average price is £100 per calendar month, but in London you can earn up to £250 per calendar month.

Where can I advertise my parking space?

There are various websites where you can advertise your parking space. These include:

These websites will give you a good estimate of how much your parking space is worth based on your postcode and they will put you in touch with potential customers. You can then meet them and come to an agreement.

Do I need a contract?

Yes. It’s wise to use a Parking Space Let Agreement to get the rental agreement in writing.

The agreement should specify how long the tenant is going to rent the space, between what hours and for how much. It should also provide a notice period. Lawpack’s Parking Space Let Agreement includes all these terms.

Both parties should sign the agreement.

Do remember that the income you get is taxable.

Are there any disadvantages to renting out a parking space?

If you rent out a parking space, you obviously must make sure that the space is available when the tenant needs it and that no-one is in the space at that time.

To do this you may have to put up notices to say that unauthorised vehicles will be removed or you may need to put up a parking post.

If the renting of your parking space ends up not working well, then you can always terminate it. Lawpack’s Parking Space Let Agreement includes a clause for you to provide a notice period to the renter of your parking space.

How to appoint an executor and trustee in your Will

Lawpack on March 27, 2020

An executor is a person named in your Will who has the responsibility of managing your property after your death and distributing that property according to the terms of your Will.

The executor will have to collect in and preserve your assets, pay all relevant taxes and liabilities, obtain a grant of probate, sell those assets that need to be sold, and finally distribute your assets to your beneficiaries.

In some instances, money may not be paid directly to all your beneficiaries and may be held for their benefit. This is most common where the gift is to minor children or to someone pending their fulfilment of a condition, such as reaching a certain age.

If this happens, the money will be paid to the person or persons you appoint as trustee.

We recommend that you appoint the same person or persons as both executor and trustee when writing your Will.

Trustees are then responsible for holding the monies and looking after them for the benefit of the beneficiaries. They are entrusted with investing the monies and generally safeguarding them.

In some instances, trustees have the ability to distribute all or part of the monies to the beneficiaries or use them for their benefit, if they think that this is in the interest of the beneficiaries.

You must appoint at least one executor to carry out the instructions in your Will and it’s usual to appoint two. Two executors should be appointed if the Will contains a gift to children, some of whom may be under 18 when you die.

You should also appoint a replacement executor in case one of the named executors is, for any reason, unable to act.

The primary concern in selecting executors for your Will is that they should be reliable and trustworthy in carrying out your wishes. It’s also desirable that at least one executor should know the beneficiaries of the Will personally.

Often the best way is to appoint the person who stands to benefit most from your Will as one executor, and another relative or close friend as the second executor to assist or to take over should the first be unable to act.

A person cannot act as executor for your Will while under 18. The duties of an executor need not be difficult and your executor can use a solicitor to process the necessary probate forms.

Always check with your proposed executors before making your Will to be certain they are willing to act; a template letter to an executor is provided with Lawpack’s Last Will & Testament DIY Will Kit.

Related Articles:

I’m self-employed – should I register for VAT?

Lawpack on March 27, 2020

When you’re self-employed, tax can be a worrying issue. Knowing when to pay tax and how much you need to pay can be baffling. Does your small business need to register for VAT and if so, what is the VAT threshold?

The admin of registering for VAT

Before I explain the pros and cons of voluntary VAT registration, you have to ask yourself: “Am I prepared to take on the responsibility of writing up my accounting records in accordance with certain legal standards, and doing so every quarter?”

If you’re the kind of person who finds administration, filing and bookwork a chore, you probably shouldn’t register for VAT as it will become an extra problem for you.

Do, remember, though, that you could avoid the burdensome administration of VAT registration by employing an accountant to prepare the VAT Returns, but, of course, this will cost you extra money.

If you’re unsure about your answer to this question, I should emphasise that there are thousands of UK traders who register for VAT and, when you consider that many are self-employed running small businesses and have no training in book-keeping, it’s obvious that keeping VAT records properly isn’t an insuperable task.

If you’re prepared to learn the simple VAT accounting rules and stick to them, then you can easily register for VAT.

But if your turnover is above the annual VAT threshold (£85,000 is the 2020 figure), then you don’t have any choice in registering for VAT. VAT registration is compulsory in your case.

What is the benefit of registering for VAT?

The advantage of VAT registration is that you can reclaim VAT on most business purchases. If you’re not registered for VAT, then no reclaim can be made.

What is the possible disadvantage of registering for VAT?

The problem with VAT registration is that you have to add VAT to all your VAT-able sales. This means that all such sales are automatically more expensive than they would be if you were not VAT-registered.

This might put you at a disadvantage against your competitors if they haven’t registered for VAT. But if your customers themselves are registered for VAT (i.e. if you’re dealing with other businesses rather than the public), they will, in turn, be able to reclaim any VAT that you charge. So this would not disadvantage your business.

If you feel that you’re prepared to treat VAT registration with the due respect that it requires, and that your sales will not suffer unduly as a result, then you should consider registering for VAT.

If your business is one that will attract a regular refund of VAT, you’ll be offered the chance of receiving your repayment monthly and not quarterly. Unless the sums are considerable (i.e. more than £500 a month), you’re advised to resist monthly VAT Returns because attending to them monthly, rather than quarterly, can become a nuisance.

When you register for VAT, you may also apply to fill in just one annual VAT Return and pay your VAT over nine months with a balancing payment at the end.

How do I register for VAT?

The easiest way to register for VAT is to do it online at www.hmrc.gov.uk. Go to the VAT page on the website where there is an online VAT registration service. Alternatively, you can contact your local HMRC office and arrange for an application form to be sent to you.

More expert guidance in Lawpack’s Self-Employment Kit, which outlines the day-to-day practicalities of being self-employed. Lawpack also publishes two tax books, 101 Ways to Pay Less Tax and Tax Answers at a Glance, which are full of tax-saving tips and guidance as to the taxes involved in running your own business.

Why a written tenancy agreement is necessary

Lawpack on March 27, 2020

Having a tenancy agreement is vital for any landlord. It’s so important to get the tenancy in writing as it protects your property, sets out your obligations and that of your tenant’s, plus it prevents potential disputes between you and your tenant in the future.

Although there is no legal requirement for you to create an assured shorthold tenancy (AST) in England and Wales, all landlords should ensure that their tenants have signed a written tenancy agreement prior to letting them into the rental property.

But in Scotland all landlords must have a written tenancy agreement for the tenancy to be a provate residential tenancy (PRT).

The disadvantages of not getting it in writing 
  • If you make arrangements informally with your tenant, there may be arguments later about the tenancy terms, even if these were clearly discussed when the tenant moved into the property.
  • Once a tenant is in occupation, you cannot then force them to sign an agreement that varies the terms of their tenancy, so it’s essential that this is done before the tenant goes in.
  • You will not be able to use the accelerated possession procedure to evict the tenant, where there is no written agreement.

The advantages of getting it in writing 

  • A formal agreement protects your position and regulates the tenant’s use of the property.
  • If you intend to take a damage deposit, which has to be protected under one of the statutory tenancy deposit schemes, you will need to make an agreement.
  • If no written tenancy agreement is provided, you’re required, by law, to provide the tenant with written details of the main terms of their tenancy within six months; so you may as well provide a proper written agreement to begin with.
  • Housing Benefit offices require tenants claiming benefit to produce a signed tenancy agreement.
Lettings not needing an agreement

Although all tenancies should have a formal written agreement, licences don’t always need them. For example, written agreements are not necessary in the following circumstances:

  • Letting a room in your house to lodgers. However, we still do advise you to get it in writing with a Lodger Agreement.
  • Bed-and-breakfast accommodation.

But even if a formal tenancy agreement isn’t provided in these circumstances, there should always be some paperwork to prove the terms of the letting, in case there is a dispute at a later date.

More information

Landlords: why you can’t disturb your tenants

Lawpack on March 27, 2020

Every tenancy agreement contains what is called the ‘covenant of quiet enjoyment’. This doesn’t just mean that tenants are entitled to a noise-free environment, but that they have the right to live in the property undisturbed.

This means that not only do they have the right not to face eviction, but also that you, as the landlord, should respect their rights and not do anything that will adversely affect their occupation of the property.

The covenant of quiet enjoyment is most commonly invoked to protect tenants whose landlord is trying to ‘persuade’ them to leave, perhaps because they are in rent arrears or because they want the property back for their own use, but they are reluctant to go to court for an eviction notice.

For example, such landlords may constantly visit the property, shout threats at the tenant, and interrupt the gas and electricity supply. This sort of behaviour is illegal and can attract both a criminal charge and make the landlord liable for civil proceedings for an injunction and/or damages.

But the covenant for quiet enjoyment can also apply to other matters. For example, it can cover your failure to comply with tenancy law by not repairing the property

It’s important that you keep the property in proper repair, and that you don’t intrude on the tenant’s privacy. These may conflict, as clearly you will have to go to the property from time to time to carry out your inspections and repairing obligations.

Some tenants may object to this and call it harassment (particularly if they are in rent arrears). If there is a problem of this nature or is likely to be, then you should take care to only visit the property by appointment or by the invitation of the tenant.

You should never use your keys to enter the property without the tenants’ knowledge or permission, other than in cases of genuine emergency.

If the tenant objects to you attending to do inspections or carry out repairs, then you cannot enter the property. This situation is rare, however, and if it occurs, then you should consider whether you should bring proceedings for eviction.

Note that if the tenant’s failure to allow access for repairs is causing the property to deteriorate, this may in itself be a ground for possession. But this should only be used if the deterioration is very serious and urgent remedial work is needed.

If you treat your tenant with respect and comply with your obligations under tenancy law, you will be protecting yourself from any potential claims from your tenants. You will also find it easier to enforce your own rights against the tenant, should this be necessary.

Although a covenant of quiet enjoyment is not implied into licence agreements, licensees have the right to use the property for the purpose for which occupation was granted, which gives them a certain amount of similar protection for the duration of the licence agreement.