Local Talks on issues affecting the Elderly

 

Talk 28th May 201 @ 7 p.m.

 

Geraldine Conaghan apologies to all of Burt’s Women’s Group for her failure to attend the March meeting, as she was under the impression dates and time had to be confirmed.  She is happy to attend the May meeting and deal with the queries received dealing mostly with Wills.

 

During the month of May, as part of “Alzheimers Awareness” Initiative , Geraldine Conaghan is facilitating local talks in Moville, Burt and Newtowncunningham where she will address “The Role of Enduring Powers of Attorney (EPA) and Assisted Decision making” in assisting is issues affecting the elderly or any one under a mental disability. EPA’s are a legal device that facilitates legal arrangements for others to legally deal with your affairs of those who become incapable of managing their own affairs.  She will discuss the new structures and the changes proposed by the Government in the new “assisted decision making legislation”.  The Nursing Home Support Scheme will be addressed.  There will be a question and answer session. There is also a facility that questions can be submitted in writing in advance by putting questions in sealed envelopes and left in the office at Serenity House, Moville  where she can address the issues raised as part of the presentation ensuring the confidentiality of the parties.

 

 

Local Property TAX – exemptions not limited to FIRST TIME BUYERS

The Finance (Local Property Tax) Act 2012 (‘the Act’) provides that the owner on 1st November 2013 is the person liable to pay LPT for 2014 – even if that person is selling the property before the end of this year and will not own or occupy the property at any time during 2014.

This is bad news because if the purchaser is exempt then they will not agree to apportionment. Many more 2013 purchasers are entitled to LPT exemtions because of the widening of what was previously thought to be an ‘exemption’ only for first time buyers to all purchasers of such property during 2013. In relation to the ‘exemption’ for purchasers (not just first time buyers) of second-hand residential property during 2013 for owner occupation (investors are not entitled to the exemption) – Revenue has confirmed that if these sales do not complete before the end of 2013, purchasers will not be able to claim exemption for 2014, 2015 and 2016.

Revenue has confirmed that they will go by the date of completion of the transaction, not the date of the contract, and that they will not entertain claims for an exemption where the closing takes place after 31st December 2013. This is an important point for purchasers to bear in mind when negotiating contracts and the question of apportionment.Owner occupiers who are not first time buyers and who buy between 2nd May 2013 and 31st December 2013 will only get the exemption for 2014, 2015 and 2016 if they apply to Revenue for the exemption.

Revenue has confirmed that the only tax that will be refunded is to a purchaser of second hand residential property for owner occupation who bought between 1 January and 1 May 2013 and the amount to be refunded is the amount of the 2013 tax they paid. By virtue of being the owner as of 1 May 2013, this person was the liable person for the 2013 tax. The 2013 tax was paid with this purchaser not knowing that the true interpretation of the Act was that all purchasers of this type were in fact entitled to an exemption in the same way as first time buyers. The 2013 tax paid will be refunded – but only if the purchaser applies to Revenue for a refund and shows that s/he meets the requirements of Section 8 of the Act.

Donegal County Council taking over estates with mechanical treatment plants

Under  Section 180 of the Planning and Development Act 2000 as amended (“Section 180”) the Local Authorities are obliged to take services in charge once they are completed.  Donegal County Council were refusing to take over Estates where there were mechanical treatment plants but are no longer allowed to do so. If the majority of the residents in housing Estates apply to the Local Authority to have their services taken in charge , such applications under Section 180 must be accepted.  For full details visit

http://www.donegalcoco.ie/services/planningeconomicdevelopment/TakinginchargeofEstates

Child Care cases now being reported

The Child Care Law Reporting Project (CCLRP) has been established to examine and report on child care proceedings in the courts, under  the Child Care (Amendment) Act 2007, which modified the in camera rule governing cases heard under the Child Care Acts.  For the first time reports of court proceedings where children are taken into the care of the Health Service Executive (HSE) are being published and are available online.  The new website contains reports of proceedings heard over the first three months of 2013 in District Courts around the country.

The reports give an insight into the reasons why the HSE seeks orders taking children into interim or long-term care, or supervising their families, the responses of the families concerned and the input of the judges hearing the cases. The reports do not identify the children or their families.  The website also contains statistics on care orders sought and granted in the different District Courts around the country for 2011. The 2012 figures will be available in July.

see; www.childlawproject.ie

 

Austerity

Economist and New York Times columnist Paul Krugman is not buying that Austerity is good for us, as he wrote recently that nobody is saying that Ireland is recovering, only that it is “set to recover”. As he says. ” we’ve heard that before, and before, and before”.. He highlights “Ireland’s odd economic structure, in which so much of its reported exports in particular come from companies that add little value in Ireland, means that the usual numbers have to be treated with great caution.

So look: maybe Ireland really is going to recover for real soon; let’s hope so. But the repeated declarations that it is already a success story — this has been going on for at least three years — are just weird.

And yes, it seems obvious to me that Ireland keeps being proclaimed a success because it’s supposed to be a success: they did the austerity thing forcefully, with a minimum of complaints, so there must be a pot of gold at the end of that rainbow, right? “

Commonage Partitioned in Buncrana Circuit Court

Today, in Buncrana Circuit Court, on an application by Donal McGuinness BL, instructed by MacBride Conaghan, commonage was sub-divided by Judge John O Hagan in what may be one of the first cases in the County seeking Partition under the 2009 Land Act.  With Commonage issues in the news due to worries of financial corrections being imposed by EU Commission for under use of land, it is a welcome development to see the new Act being successfully invoked to benefit landowners.

The Land Commission created and granted commonage grazing rights to Irish tenants with smallholdings during the period of land reform from the end of the 19th Century until the 1980s.  Commonage is land held in common ownership on which two or more land owners or farmers have grazing rights. Access to a given commonage is restricted to the owners who have the legal right to exclude others not having the rights. As none of the owners have the right to exclude other common owners or exclusively use any part, there is little incentive to improve these lands and these lands are generally under utlized.  The Land commission operated a scheme to partition these lands into separate ownership where one or more of the co-owners could apply to the Land Commission to have the commonage divided compulsorily under section 24 (3) of the Land Act, 1939. When the Land Commission was abolished, there was no procedure to compel partitioning into separate interests until the 2009 Land and Conveyancing Act, which became law in 2010.

Our Firm was instructed in respect of local hill land where there were 14 shares. Land being land, the physical sub-division and agreement of the various plots was never going to be easy. By the time the plots were agreed the Land Commission had been abolished. There was no mechanism left to subdivide, apart from all 14 owners entering into a legal Voluntary Deed of Partition. For this to happen, all owners had to have their title affairs in order and their commonage rights recorded on their title deeds. This proved impossible as some of the owners had died.

With the New Land and Conveyancing Act becoming law in 2010, Geraldine Conaghan solicitor saw a new way to resolve the matter. Local Barrister Donal McGuinness Bl. accepted the challenge of drafting proceedings to seek Partition under section 31 of the 2009 Act, despite its novelty. The section had never been before invoked to divide commonage.

In the end, the court order was granted quietly today, on the Application of Barrister Donal McGuinness, in Buncrana Circuit Court, its significance known only to the few involved in the long saga or those other lawyers present with an interest in Land Laws. This appears to be the first time it was used in County Donegal, but no doubt will not be the last.

Why Lawyers Are Unhappy

While pessimists tend to be losers on many fronts, there is one striking exception: pessimists may fare better in law. According to the American research, it stems from three causes: (1) Lawyers are selected for their pessimism (or “prudence”) and this extends to the rest of their lives; (2) their jobs are characterized by high pressure that promotes poor health and poor morale; and (3) the Adversarial court system that pits lawyers against each other, creating negative emotions. MARTIN E. P. SELIGMAN,

Insolvency Guidelines on Living expenses

The Insolvency Service (ISI), the body set up to administer the Personal Insolvency Legislation, finally published guidelines as to what constitutes a reasonable standard of living and reasonable living expenses. This will be used to calculate the insolvent’s disposable income available to meet its debts to avail of the insolvency processes.

On the 18 April 2013, the Insolvency Service revealed that ‘’a reasonable standard of living is one which meets a person’s physical, psychological and social needs’. Under the ISI model, a ‘reasonable standard of living’ does not mean that a person should live at a luxury level but neither does it mean that a person should only live at subsistence level. A debtor should be able to participate in the life of the community, as other citizens do. It should be possible for the debtor ‘to eat nutritious food to have clothes for different weather and situations, to keep the home clean and tidy, to have furniture and equipment at home for rest and recreation, to be able to devote some time to leisure activities, and to read books, newspapers and watch television’.’

 

The ISI model is predicated on need, not wants. It excludes private medical insurance and holiday costs. A car is not deemed necessary where there is good public transport.  The guidelines set out 15 main categories of reasonable living or household expenses.

For a single adult, with a car, Monthly expenditure* is approximately €1,000 per month, based on the household’s ‘allowable’ expenditures of;

1) Food; €250

2) Clothing; €35

3) Personal Care; €33

4) Health; €31

5) Household Goods: €31

6) Household Services; €48

7) Communications; €43

8) Education; €25

9) Transport; public €136, or if car is necessary, €240

10) Household Energy; €50 for electricity and €55 for heating;

11) Insurance; Home €12 and car €26

12) Savings and Contingencies; €40

13) Social Inclusion and Participation; €125

14) Housing; will be variable depending on mortgage and rental; and

15) Childcare will depend on employment status of adults and age of child.

* (Some figures are rounded off)

 

For a DRN, there is a strict application of the reasonable living expenses model in determining the eligibility of the applicant. Where a DSA or a PIA is proposed, the decision on reasonableness or otherwise of living expenses will be a matter for the creditors to determine on a case by case basis with PIP acting to facilitate debtors and creditors in working out an arrangement acceptable to both, which may involve relocation.  Reasonable living standards may be higher than the guides where acceptable to creditors. Apart from flexibility in this, the banks’ attitude towards debt forgiveness will have to change for the new regime to work, as debt resolution targets must be attainable for borrowers so that they are motivated, and not crushed

U. K. Lasting Powers of Attorney

There is no reciprocal agreement between the UK Office of the Court of Protection and Ireland ‘s High Court Wards of Court Office  regarding UK Lasting Powers of Attorney and Irish Enduring Powers of Attorney.  With regard to all foreign Powers, it is a matter for the individual  institutions (e.g., the Bank) in this jurisdiction to decide if  they will accept a foreign Power as it stands or whether they request that the foreign Power be registered here. From experience, it would  appear the majority of institutions do request the foreign be  registered here before they will accept same. The Irish Wards of Court office have advised that to date, they have registered U.K. Enduring Powers of Attorney but not a  UK Lasting Power of Attorney

The UK Mental Capacity Act 2005 provides the legal framework for the powers granted by a Lasting Power of Attorney. The provisions of the Act are only applicable within England and Wales, therefore only assets held in England and Wales come under its jurisdiction. An Attorney can be based overseas but will only be able to deal with assets in England and Wales.

Under the terms of the Mental Capacity Act 2005, Institutions in England and Wales should accept an EPA/LPA equivalent document which has been created under foreign legislation. Schedule 3 19(1) of the Mental Capacity Act outlines that a protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the grounds that the adult is habitually resident in the other country.

If you are having difficulty in UK getting an Institution to accept their foreign order an application can be made to the UK Court of Protection for a recognition or enforcement order using schedule 3 20(1) or 22(1) of the Mental Capacity Act.  The Court of Protection may be contacted on 0300 456 4600 or courtofprotectionenquiries@hmcts.gsi.gov.uk

In Ireland, it may be required  that:

(i) an application be made to the Court to see if the Lasting Power of Attorney could be registered as an Enduring Power of Attorney

(ii) if the Judge directs that it can be, then the Attorney can makethe application to register a foreign Power
To date such an application has not been received in the Wards of court Office

Local Property Tax keys Dates

On  March 2013, the forms and detailed guidance were published by Revenue, and the following are further KEY DATES:

  • 30 April                                     Household charge will be capped at €130 if paid before thus date
  • 01 May                                       Local Property Tax (LPT) liability and valuation date
  • 07 May                                      Paper returns due for LPT
  • 28 May                                      Electronic returns due for LPT
  • 01 July                                      LPT will be increased by €200 if the household charge is not paid before this date. Phased   payments commence (e.g., direct debit or deduction at source)
  • 21 July                                      Single payment bank debit deducted, i.e., bank transfer
  • 01 November                         LPT liability and valuation date for 2014 and subsequent years