Local solicitors offer urgent warning about Government’s ‘risky’ online legal tool

  • Local solicitors from McMillan Williams, have issued a warning about the Government’s online tool for Lasting Powers of Attorney (LPAs)
  • LPA tool leaving people at risk of financial abuse and fraud
  • Coalition of organisations including Solicitors for the Elderly (SFE), Action on Elder Abuse, Anchor, Contact the Elderly and SOLLA are backing new report

Katherine Carroll
Katherine Carroll
Partner - Private Client

Jane Amanda Flaherty
Jane Amanda Flaherty

Local solicitors Katherine Carroll and Jane Flaherty, based at MW Wimbledon and MW Devon, have joined a number of organisations representing older and vulnerable people to raise serious concerns around the Government’s online tool for creating Lasting Powers of Attorney (LPAs).

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

In May 2014, the Government’s Office of the Public Guardian (OPG) launched its online LPA tool, which it claims allows people to create the documents without the need for professional advice from a solicitor.

But a new report, published by a coalition of organisations led by SFE, warns that anyone creating an LPA without taking specialist legal advice faces a significantly higher risk of being left with an ineffective legal document, incurring additional application fees, and even becoming a victim of fraud or coercion.

The report also raises concerns around the potential of a completely digital system proposed by the OPG, whereby ‘wet signatures’ – the physical signing of the document – would no longer be required.

Katherine and Jane are both Full Accredited members of SFE.  Jane Flaherty said:

“The prospect of being able to submit an LPA application entirely digitally is extremely concerning, and raises some serious questions around the potential for fraud and financial abuse.”

During a study conducted for the report, participants were invited to create LPAs using the OPG’s online tool and other ‘DIY’ methods. The study revealed that:

  • Some of the forms did not accurately express the way in which participants would want their affairs and welfare to be handled in the future
  • Documents made using DIY methods were more likely to contain elementary mistakes, rendering them ineffective and requiring additional application fees
  • Following consultation with a solicitor, most participants made significant changes to the permissions of their documents regarding how and by whom their affairs were managed

June McSparron, a 75-year-old who participated in the study, said: “You’re exposing yourself to a lot of risk by filling this form in on your own. There are so many bits that you can get wrong, and you can easily be pressured into making choices that you’re not entirely comfortable with.”

The number of LPAs being registered has increased steadily since the launch of the online tool, with over half a million registered in 2015/16 alone. The OPG is actively trying to convince more people to apply for LPAs online, having set a target for the service to comprise 30% of all applications from April 2016 to March 2017. In its latest Annual Report, the OPG even admits it is willing to take ‘risks’ in striking a balance between ‘empowering and safeguarding’.

With the OPG already receiving over 1,000 calls to its contact centre every day, the organisations behind the campaign say the Government body is potentially exposing people to unacceptable levels of risk and in doing so may be compromising its ability to safeguard those who are most vulnerable.

Katherine Carroll said:

“An LPA is by far the most powerful and important legal document an individual can have, because it allows you to pass potentially life-changing decisions about your affairs on to a third party.

It’s absolutely right that people should be planning ahead for the future with LPAs, but granting someone this sort of authority over your affairs is an extremely big responsibility for all parties involved. This is a specialist area of the law, and we recommend that anyone considering an LPA goes to a legal expert to ensure they get the right advice, consider all the options, and safeguard themselves for the future.”

To download the report ‘The Real Cost of DIY LPAs’ go to: http://www.sfe.legal

We Can Help

At MW, our mission is “to make quality legal services accessible to everyone” including those who cannot act for themselves.  If you are in any doubt that you may need to establish Power of Attorney either for yourself or a loved one call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Protected Tree

What is a Tree Preservation Order?

A TPO is a written order which, in general, makes it a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree protected by that order, or to cause or permit such actions, without the Local Authority’s permission.  The principal purpose of a Tree Preservation Orders (TPO) is to preserve trees which are normally located on privately owned land.

Dan Carter
Dan Carter
Partner & Head of Professional Negligence

All types of tree (but not hedges, bushes or shrubs) can be protected, and a TPO can protect anything from a single tree to all the trees within a defined area or woodland.  There is no statutory definition of what constitutes a “tree” and specialist advice should always be sought before any planned works take place on protected vegetation.

Who Makes These Orders?

Tree Preservation Orders (TPOs) are made under the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. Planning conditions are normally conditions which are applied when planning applications affect existing trees - they are normally only temporary (for up to two years) but some last for longer, and indeed some have no time limit at all, so even if your tree is in an area where no planning permission has been granted recently it is worth checking.

How Do I Find out if a Tree on My Property Has a TPO?

The starting point would be the Gov.uk website which allows a householder to check the status of trees and this can be done prior to the purchase of the property by prospective buyers.  However, some TPO date back to 1949 and there is the possibility that Local Authority records may not be accurate.  A TPO should show up on the Local Land Charge search that your Solicitor undertakes but this is not always the case.

I'm Buying a House Which Has a TPO What Should I Do?

If you are thinking of buying a property or land with which there may be an issue concerning a tree preservation order it may affect the value or restrict the way in which you use your home now and in the future.  Whether the property is in a city such as London or Brighton or in the countryside, our team of experienced residential conveyancing Solicitors can help.

My House Has a Tree Protected by a TPO What Can I Do?

If you are already the property owner you need to be aware that anyone found guilty of such the offences listed above is liable. In serious cases the case may be dealt with in the Crown Court where an unlimited fine can be imposed. If notice of the TPO has not been served on the landowner (and in many cases it has not, or records of the service were not kept), then they may genuinely be unaware of the protection.

In such a case, although an offence may still have been committed, it is likely that any penalty would be less severe than otherwise.  However, if the felling or lopping was necessary for the prevention of a nuisance there will be no offence.  In either case, MW's has experienced civil litigation Solicitors who can help you to resolve the matter.

What Is a Section 221 Notice and How Do I Apply?

Normal TPO procedures apply if a tree in a conservation area is already protected by a TPO, but if a tree in a conservation area is not covered by a TPO you must give written notice to the Local Planning Authority (LPA) of any proposed work, describing what you want to do, at least six weeks before the work starts.

This is called a “section 211 notice” and it gives the LPA an opportunity to consider protecting the tree with a TPO.

If the Local Authority decides to lift the TPO, the usual reason is if there has been some mistake in the making of the Order and a new one is needed to correct it.

Can I Do Works on a Tree Protected by a TPO?

If you want to do works to the trees, don't try to remove the TPO, you only need to apply to the Local Authority for permission to do the works. If you've got a good enough reason then the Local Authority will allow it. If not, they won't.

If the TPO is confirmed it can be modified in the confirmation process and you should seek specialist advice before submitting the notice to avoid missing this opportunity.

If the Local Authority refuse unreasonably, there is an appeal process which is set out in the law and damages can be claimed under the Town and Country Planning Act 1990 which normally takes place in the Lands Tribunal.

Landowners should always consider having a survey carried out on the number of trees within an area identified within a TPO, particularly if it is likely that the existing density of trees within the woodland is less than may be assessed by standard planting densities.

If you're in any doubt as to how to do this, call our specialist solicitors who are experienced in dealing with Local Planning Authorities, and they can submit an application for you.

I Have a TPO on My Property and My Conveyancer Didn't Find It When I Bought My House, What Can I Do?

If you bought a property and subsequently discovered that there is a TPO in place that you cannot lift or modify and it was in place when you bought the property, you may be able to make a claim for professional negligence.

You must be able to demonstrate that the omission of the TPO has caused you loss.  

The Court will need to establish that the conveyancer owed "a Duty of Care" to you as the buyer and will consider if:

  1. The damage was foreseeable.
  2. There was a relationship of proximity between the parties.
  3. The imposition of a duty is fair, just and reasonable.

We Can Help

At MW, our mission, is "To make quality legal services accessible to everyone" including property owners who want to get a TPO lifted or have discovered a TPO on their property as a result the negligence of their conveyancer.  Our team of dedicated solicitors have many years of experience dealing with TPOs and Professional Negligence matters.

If you wish to have a free initial discussion about your TPO matter call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

Millenium Bridge

McMillan Williams Solicitors Limited are excited to announce that it has incorporated South London High Street Law Firm Ormerods with effect from 3rd October 2016. 

McMillan Williams CEO Colum Smith

“At McMillan Williams our mission is to “To make quality legal services accessible to everyone” and this acquisition further extends our capability and presence on the high street.
We welcome the Ormerods team into the MW Family who will complement our already strong team of specialist solicitors helping our clients to achieve pragmatic and affordable justice across all areas of consumer and commercial law.”

Ormerods Managing Partner Simon Cook

“We are looking forward to bringing our historic legal expertise to McMillan Williams.  Their reputation as a modern and forward thinking law firm combined with their extensive infrastructure will enable us to continue to provide excellent service to both existing and new clients alike.”

About McMillan Williams

McMillan Williams Solicitors Limited is a high street law practice with 24 offices across London, The South of England and Devon. Providing pragmatic legal solutions across a full range of consumer and commercial legal disciplines for over 30 years, MW employs over 200 Solicitors and Legal Executives with an annual turnover of £30M.

Note to Ormerods Clients

Ormerods Solicitors continues to trade but cannot undertake reserved legal activity and is not insured to do so.  Any complaint or undertaking you have from Ormerods should be sent to Ormerods at their continuing service address 45 Friends Road, Croydon, CR0 1ED

Death at Work

Equality of Arms for Families at Inquest

In a recent interview with the Guardian, Chief Coroner of England and Wales, Peter Thornton QC said: 

“There are cases where legal aid should, if possible, be made available for families, particularly where one or more organs of the state are represented.”

Helen Clifford
Helen Clifford
Partner & Head of Personal Injury

At McMillan Williams we strongly support the work of Health and Safety Campaign Groups such as The Hazards Campaign and Families against Corporate Killers (FACK) who have long called for the 'equality of arms' for all families of those killed by work.

We welcome what the Chief Coroner says, but we want the right to legal aid for representation at inquests to be extended to all families of those killed by work whether the state is directly involved or not. 

Unequal Representation

Families who face up to companies (large or small) who killed their family members frequently have no legal representation at Inquests, whereas companies, particularly large multinationals, often have access to a slew of expensive barristers and corporate lawyers.  

This means that there is often inadequate examination of the issues or the failings of the companies themselves, and of the failures of state regulatory or enforcement frameworks.  It is these frameworks that are designed to keep work safe and to hold employers to account which contributes to the prevention of future deaths.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including the families of those who have been killed by work. 

If you need representation or legal advice on attending an inquest call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk  

Social Media

Social media websites such as Facebook and Twitter have revolutionised who, how and the speed at which people can communicate, as well as the permanence of that communication.

They are fantastic tools for the Twenty First Century but one significant downside of them is that they usually require the disclosure of private information/personal data and the relinquishing of control of it to the websites.  Potential consequences of which can lead to breaches of Privacy, Confidence, Online Harassment, Data Protection, Defamation, Malicious Falsehood, Copyright, and Human Rights Law.

Exposing your Personal Information to Strangers

Ryan Dunleavy
Ryan Dunleavy
Partner & Head of Media Law Reputation Management

To set up social media identities people almost always need to provide some information from their private lives and some of their personal data. Many people also choose to go one step further and release and therefore lose control over (to an extent) extra private information that can be accessed by anyone, including people they do not know.

This allows third parties to use the individual’s information as a reference tool and can lead to the harvesting and further dissemination of their data, photographs, etc without their consent.

People join social media websites to communicate and share with others, but by doing so they can also find themselves targeted by trolls, stalkers, and the unscrupulous.

Such a situation can cause damage to ones reputation, lead to further infringements of privacy, harassment, distress, and a general feeling of loss of control.  There is a fine line between wilful disclosure and psychological exposure.

Removal of Information

Social media sites often refuse to remove distressing posts when requested to do so, as we have seen in multiple cases such as when the now imprisoned hate preacher Anjem Choudary posted items on Twitter and YouTube, and the case of the 14 year old suing facebook for not removing pictures of her.

When matters such as the above have been pushed too far, sometimes the only thing that will put a stop to the situation is an injunction from the court.  This can be on numerous grounds such as; privacy, or breach of confidence, or harassment, or data protection, or defamation, or malicious falsehood, or copyright, or under human rights legislation.

We Can Help

At MW our mission is "To make quality legal services accessible to everyone" including those who have been victims of social media legal infringements.  We represent everyone, not just celebrities and the rich and we offer conditional fee agreements (no win, no fee funding) for these types of cases, where appropriate.

If you feel that you have been subjected to social media legal infringements or wish to talk to one of our specialist social media lawyers, call 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

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