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Why don't you have an LPA?

July 27, 2015 by Rory MccGwire

Why don't you have an LPA?{{}}Hardly a week goes by without dementia being mentioned on the radio and in the press. We live longer and longer, at great cost to the NHS, but we have barely begun to understand how we might combat dementia and Alzheimer's disease.

So it is good news that the Government has taken steps to make a lasting power of attorney (LPA) easier to set up. Since 1 July, the forms have been made simpler, so too has the application process.

Put simply, an LPA gives someone else the power to make certain decisions on your behalf, if you are no longer able to do so.

So, if you are lying unconscious after a traffic accident, an LPA could give your adult son or daughter the legal authority to make decisions about your healthcare. It could also allow him or her to pay your bills using the money in your bank account until you recover. The key point is that, using an LPA, you can choose in advance which trusted person is given the legal right to make these decisions.

It's interesting to note that most people seem happy to write a will, in case they die unexpectedly, perhaps from a sudden heart attack. But fewer people set up an LPA, in case they do not die but are nevertheless incapacitated, perhaps by a stroke. Perhaps the latter is more frightening to contemplate and to plan for.

It makes sense to set up an LPA when writing your will. Both documents make life much easier for your family.

So come on UK media. Let's make life a little easier for our aging UK population. Make more people aware of LPAs and how important they can turn out to be.

  • Written by that well-known legal guru, rugby coach and man around town Rory 'LPA' MccGwire.

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How to avoid a workplace meltdown

July 01, 2015 by Fiona Prior

How to avoid a workplace meltdownThe Met Office has announced that today has officially been the hottest day of the year. And temperatures have not been this high for at least ten years.

The prospect of a week-long heatwave is great when you are off work and you can lounge in the sunshine. But squeezing into an overcrowded bus or tube, or sitting in stationary traffic, when you are already hot and bothered is a sure fire way to get you hot under the collar before the day has even started.

The Met Office and Public Health England have warned that the current spell of hot weather could be harmful to some vulnerable people and Network Rail have announced that there will be speed restrictions on some lines due to the risk of buckled tracks and line-side fires.

This could have a real impact on your workers if they use public transport to get to work. So what can you do to minimise the impact of the heatwave on your staff?

  • Warn staff about the risks posed by this weather. Whilst we all enjoy the sunshine, it can cause serious health problems. Staff should wear suitable clothing, use sunscreen if they work outside, and keep themselves suitably hydrated. Workers should avoid the peak hours of sunshine when the UV factor is at its highest.
  • Advise those with Asthma or other serious health problems to take suitable precautions.
  • Prepare for thundery weather – the Met Office has warned of sudden, heavy downpours that could cause localised flooding.
  • Consider allowing staff to alter their working hours temporarily. Perhaps they could start and finish work a bit earlier to avoid crowded and overheated buses and trains.
  • Take into account the possible delays caused by 'go slow' restrictions on the trains and tubes. Remind employees to allow extra time to get to and from home or business meetings and be ready to be flexible on start times if employees use public transport to get to work.
  • Get company vehicles serviced to ensure that air conditioning, windows and sun roofs work properly.
  • Make sure staff stay properly hydrated. Provide cold drinks to help staff stay cool.
  • Allow extra or longer breaks so that employees can cool down in a shady place.
  • Open windows and close curtains or blinds to help keep your offices or premises cool.
  • Site desks away from direct sunlight to avoid heat and glare.
  • Hire fans or air conditioning equipment to keep the heat under control. Although there aren't maximum or minimum legal working temperatures, you should aim to keep the workspace comfortable, ie at a 'reasonable' temperature. What is comfortable will depend largely on what your employees are doing, with lower temperatures recommended if your employees are doing strenuous work.
  • Insulate any hot pipes or equipment – such as computer servers – which can add to the heat.
  • Turn off any equipment that you do not need.
  • Relax your dress code, if you have one. It is still possible to present a smart appearance without the need for a suit and tie.
  • Allow staff to work from home if your IT or systems make it possible.
  • Consider using the good weather to your advantage. Heatwaves like this are a rarity – the last time we had these temperatures was back in 1996. You could plan an impromptu company picnic after work, a few drinks in a local beer garden to thank staff for their hard work or a game of rounders in a nearby park as a team building exercise.

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An extreme way to handle divorce or separation?

June 29, 2015 by Rory MccGwire

An extreme way to handle divorce or separation?{{}}A video featuring an apparently disgruntled husband acting out revenge on his ex-girlfriend has gone viral on YouTube.

Viewed more than six million times, the video, which was made in Germany, shows a man called Martin taking out his power tools to cut the couple’s shared belongings in half and then putting them up for sale on eBay.

The decimated objects included a computer, a TV, a phone, a bed, a teddy bear and even a car. The opening words say: "Thank you for 12 'beautiful' years Laura! You've really earned half, greetings to my successor."

The truth behind the spoof

But this video is not what it seems. It turns out that it is a spoof. The stunt is the work of Deutsche Anwaltauskunft, an information portal for the German Bar Association.

After the video hit the headlines, the group confessed all on its website and said: “The idea behind it was to humorously point to a problem that is not only relevant in Germany: too few married couples take precautions for the case of a possible separation - for example with a marriage contract. The event of divorce then often ends in bitter fights under which not only cars and furniture suffer but especially the affected couples and their children."

This spoof had us all fooled because it hits the nail on the head. How can you neatly divide two joined lives into two equal halves? The answer is that you can’t – especially when there are children involved.

Can you avoid acrimony?

This video also rightly highlights the fact that so many separations end acrimoniously. Things often start out OK in a separation, but without very skilled mediation, far too many couples end up in a bitter dispute.

Divorce professionals often say that if both parties feel equally hard done by, then the mediator or the court has done a good job. In other words, that’s as fair as it is likely to get.

Interestingly, this spoof features an unmarried couple. Few people are aware of the lack of legal rights for unmarried partners. Women in long-term relationships can be at the biggest disadvantage. They have often sacrificed their careers to bring up children but once their kids are no longer minors, they are not entitled to spousal maintenance.

New divorce centres

Divorce proceedings are about to change, however. It’s a small step, but from July the Government is opening 11 divorce centres to take most of the 120,000 divorces a year out of the courts.

From a legal perspective, it won’t be any easier to get a divorce than it is now, as the actual grounds for a divorce are unchanged. And any financial matters will be still be reviewed by a district judge, while complex matters will still go to the central family court. But let’s hope that the divorce centres greatly improve the administrative process.

Less time to spend on paperwork and more on YouTube?

Copyright © 2015 Rory MccGwire, chief executive of Atom Content Marketing, publishers of Law Donut.

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How contract law could have prevented the pro gay marriage wedding cake row

May 22, 2015 by Guest contributor

How contract law could have prevented the pro gay marriage wedding cake rowYou may have heard the news. In a landmark decision concerning a case about freedom of expression, court rules Christian cake-makers should not have refused to bake cake with pro gay marriage theme. So it's all about liberty, justice and human rights?

Well, yes, and it plays well at the legal media box office. Everyone loves a good old discussion about justice, laws behind laws, jurisprudence. And some just love a gossipy controversy that involves two competing 'interest groups'. The judge cited 'discrimination' law in his summing up; the cake shop owned by a Christian family had discriminated against a customer for their beliefs.

But notice that the judge made a distinction: "You are conducting a business for profit". Business = objective = cannot/should not discriminate on any ground outside of the business. The laws that we have should, in theory, be about objective resolution of disputes or avoidance of dispute altogether. The law is science, not art. It's not about sociological observation or nebulous crusades for what is 'right'.

And as such, the matter could therefore arguably have been both resolved and explained via simple contract law. No need for any mention of gay rights or Christian agenda; we all have rights in contract law as both consumers and providers of goods or services.

It's worth noting that while the 'gay cake case' is reported as a piece of UK news, the matter was heard in the Northern Ireland courts. That's not quite the same legal system as England and Wales, but the core principles of contract law remain concrete and unchanging, whatever the territory, technology or idiom.

A contract starts with the invitation to treat. In this case, cake shop window displays offers or its website does the same (ecommerce is flexible and problematic and the seller should make clear in its terms and conditions what it defines as an 'offer').

An offer is then made by a customer ('please bake me a cake with big gay rights motif'). Offer gets accepted by cake shop when it confirms it will bake the cake. Money is paid; services and/or goods expected. The end. Money is paid; services/goods provided. It's a formal, binding arrangement, but one with enough stages to give both parties adequate time to understand the ramifications of the agreement and withdraw if need be.

Those processes are defined in landmark cases, the facts of which are cited and repeated by armies of law students. They are fun cases and easily learned. Just for starters see: Carlill v Carbolic Smoke Company and Harvey v Facey (1893); also Pharmaceutical Society of Great Britain v Boots (1953) and Fisher v Bell (1961).

The precise application of these principles is changing in the internet era. Note the famous Argos example back in 1999, when the retailer accidentally advertised Sony TVs for sale online for just £3 (the price should have been £299.99). The lucky buyers who clicked to purchase ended up getting a TV for a ridiculously low knock-down price.

Argos learned its lesson in ecommerce, harnessing old school contract law. To protect itself against a repeat of such events, its terms and conditions worked in a clause alerting customers to the fact that potential pricing errors could occur and in that case it would inform you as soon as possible, giving you the option to cancel. No more accidental bargain prices from Argos.

You have rights as a consumer or as a business providing goods/services. You also have to meet expectations and obligations to match terms and conditions both implied/pervasive (from statute/case law precedent) and explicit (from specific contracts). The law is not designed to protect or promote a particular interest group. It is there to ensure that common rights are upheld as citizens, consumers, businesspeople and so on. We should be able to follow an objective procedure and have assurances that actions can be taken if implied standards are not met.

There are expectations that any person should have met within a contract, if they have entered into one. That was perhaps the real issue here, at least potentially. Perhaps it just doesn't make for controversial headlines or fit the current legal zeitgeist? But contract law's principles are objective, clear and effective – whatever your religious or sexual persuasion.

Copyright © 2015 James Murphy, a graduate of New College, Oxford and the University of Law. He is a contributing editor at www.movieviral.com and www.whatisuniverse.com.

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Is your business ready for shared parental leave?

April 29, 2015 by Mark Williams

Is your business ready for shared parental leave?{{}}Employment law changes introduced on 5 April mean parents who both work now share rights to up to 50 weeks’ leave after having a baby or adopting a child.

Mothers will still take the first two weeks off as compulsory maternity leave (four if they work in a factory), while fathers/partners will also be able to take two weeks' paternity leave. But the remainder of maternity leave can be shared or taken by the father/partner.

Leave and pay

Employees can take shared parental leave in up to three separate periods. By being able to share leave with their partner, they can choose how much time off each of them will take. Leave must be taken before the baby’s first birthday (or within one year of adoption), but no more than 12 months' leave can be taken between the mother and father/partner.

Employees must give at least eight weeks’ notice of any leave they want to take. Unless you offer an enhanced package, employees receive statutory pay, which is 90% of average weekly earnings before tax for the first six weeks, then £139.58 a week or 90% of average weekly earnings (whichever is lower) for the next 33 weeks (if that amount of time is taken). In total, 39 of the 52 weeks will be paid.

Parents can choose to stick with previous standard maternity/adoption and paternity leave/pay, they do not have to take shared parental leave.

Dealing with requests

The Forum of Private Business recommends discussing “the application in depth with the employee before they formally submit a request, as repeated applications will be very time consuming to assess.”

It warns: “Employers have no right to reject an application for continuous leave; shared parental leave can only be rejected on a similar basis to the objections to flexible working. You cannot penalise parents for using SPL or put any pressure on them to cancel or change it. Failure to follow the regulations correctly could result in Employment Tribunal action and considerable financial penalties against you and your company.”

Paternity leave proposals

In February Labour announced plans to increase paternity leave to four weeks if elected in May, as well as increase statutory paternity pay by more than £120 a week to £260, paid for by savings in tax credits.

John Allan, national chairman of the Federation of Small Businesses, said: “Businesses will have legitimate concerns about these proposals and it’s important political parties understand the practical implications of policy changes. Altering paternity leave so soon after introducing shared parental leave has the potential to cause confusion among businesses that are only getting to grips with the most recent changes. We'd like to see shared parental leave have a chance to bed in before seeking to give dads extra time off.

“The reality is that for small businesses in particular, extending paternity leave from two to four weeks makes it much more likely that they will have to buy in replacement staff as they will struggle with absences. That’s a cost that some firms will struggle to afford.”

Grandparental leave?

And if you’re worried about the prospect of male employees wanting to take more than two weeks’ paternity leave, working grandparents could also be granted time off to look after their grandchildren under plans proposed by Labour as part of its ‘women’s manifesto’.

As The Independent explains, thanks to so-called “granny leave”, grandparents could “share up to 18 weeks of unpaid leave, or four weeks in any year, currently afforded to working parents or those with legal parental responsibility”.

According to research from Working Families, reports The Independent, nearly three in five grandparents already provide regular childcare. It adds: “National charity, Grandparents Plus, estimates that 1.9m grandparents have given up a job, reduced their hours or taken time off work to look after their grandchildren, which in some cases has meant a loss in income.”

Next frontier

Labour deputy leader Harriet Harman said: “Instead of having to choose between retiring early and giving up work, or not being part of the daily care for their grandchildren, we’re saying let’s look at the leave arrangements to recognise the pattern of family life. This is the next frontier. It’s the first time there has been a policy which recognises this role of grandparents.”

Neil Carberry, CBI director for employment and skills, said: “Many grandparents play an important role in helping support working families, so these proposals to consider making existing leave entitlements more flexible will help them to balance that responsibility with their own careers. Businesses are looking forward to seeing the details of this policy and making sure it works for both family members and their respective employers.” Labour plans to consult on the proposal if it wins the general election.

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