Practice Area: Personal

Clinical negligence or just bad service?

Posted on by Penny Langdon

We are all aware of the problems besetting the NHS in recent years, the massively long waiting lists, shortage of GP’s, shortage of nurses and hospital Doctors and shortage of resources such as MRI machines. We have heard about hospitals failing to meet A&E turnaround targets and elderly patients causing “bed blocking”.  We all know someone who says they cannot get a GP appointment or a referral to a specialist or a scan or who is waiting years for an essential elective surgery.

Many of us have suffered or know someone who is struggling with symptoms for which they cannot get a diagnosis. The NHS was creaking before COVID but never seemed to recover from that and now is beset by industrial action by junior doctors and consultants and nurses.

If you or your family have been in any of the above situations, you can be sure that that this all represents a terrible level of service and if you are a tax payer you surely would be entitled to think that you are not getting value for your money when having paid national insurance all your life, you now have to fork out thousands to have your knee replacement done privately or sit on the  NHS waiting list when in the meantime your overall heath suffers a major set back as a result.

But – does all this amount to clinical negligence?

Certainly, some would say it is negligent in the wider sense but to meet the legal definition of clinical negligence is much harder than you might think.

There are 3 criteria you, as a claimant, must prove if you are considering making a claim for clinical negligence.

First, you must prove there has been a breach of the duty of care. The legal test for this is in summary that, if a doctor reached the standard of a responsible body of medical opinion, he was not negligent. So a doctor is allowed to make a judgement, which turns out to be wrong, if a reasonable number of other similarly qualified doctors would have made the same judgement in the circumstances, even if they are in the minority. Therefore, if, based on your symptoms, your GP thinks you have a certain condition, but it subsequently turned out you had a different condition, but he was actually going through the same process of elimination which other doctors would have followed, then he will not be negligent even though he was wrong, and this caused a delay in effective treatment.

Secondly, you must prove is that there has been some damage arising from what you think is the negligent act or omission. If, for example, a hospital doctor, in breach of the duty of care failed to diagnose a undisplaced fracture in a bone of a patient who is in a coma after a car crash. By the time the patients eventually emerged from the coma the fracture had healed by itself with no treatment and no ill effects. So, although there has been a breach of the duty of care there is no, or at least, minimal damage.

Finally, the Claimant must prove that the breach has caused the damage. This is often not as straightforward as it sounds. This might happen for example if there was a negligent delay in treatment of a leg fracture in an accident, following which the condition of the leg deteriorated and had to be amputated. Subsequently the evidence showed that the leg was so badly damaged it would have needed to be amputated in any event notwithstanding the delay. So there is a breach of duty and damage (the amputation) but the breach has not caused the damage.

There is still a backlog for treatment across a huge range of services in the NHS which is to a large degree a still indirectly a result of the pandemic and it does seem inevitable that unrelenting pressure on systems and individuals is going to result in negligence occurring.  Whether or not the NHS is going to be able to rely on the pandemic as a defence in many cases is still uncertain. It is very unlikely that the Courts will say that in every case where that has been a delay caused by Covid, either directly or indirectly, that this is negligence because this would open the flood gates to litigation which would overwhelm public finances. On the other hand, each case will still have to be assessed on its own merits and success will be dependant upon the specific facts on the case.

If you think that you or a family member or friend have suffered bad service from the NHS which has resulted in serious injury and or financial losses, we would be happy to discuss this with you.

 

If you have suffered clinical negligence, get in touch with Penny Langdon today by email penny.langdon@wellerslawgroup.com or by phone on 020 8290 7958.

 

Navigating Inheritance Tax Implications for Cohabitating Couples

Posted on by Wellers

In a rapidly evolving social landscape, cohabitation has become a prevalent lifestyle choice for many couples. However, when it comes to inheritance tax, cohabitating couples often find themselves in a challenging situation when it comes to writing their wills and making them tax efficient.

Inheritance tax laws are typically structured to provide certain benefits and exemptions for legally married or civilly partnered couples. Unfortunately, cohabitating couples may not automatically enjoy the same rights and protections. As a result, the passing of assets from one partner to another in the event of death can trigger tax liabilities that may not be evident in traditional marital arrangements.

In many jurisdictions, married couples benefit from generous estate tax exemptions and the ability to transfer assets to a surviving spouse without incurring inheritance tax. Cohabitating couples, however, may face a different reality. Upon the death of one partner, the surviving partner could be subject to inheritance tax on assets that exceed the prevailing tax-free threshold (currently £325,000).

While cohabitating couples may face additional challenges, they are not without recourse. Strategic estate planning can play a pivotal role in mitigating tax liability and ensuring that a partner’s legacy is preserved.

Crafting a comprehensive and legally sound will is of paramount importance for cohabitating couples. A well-drafted will can outline the distribution of assets and provide clarity on the intentions of the deceased partner. Additionally, cohabitants should explore the inclusion of specific provisions to minimize tax exposure and enable the surviving partner to inherit without undue financial burden.

Cohabitating couples may consider strategic lifetime gifting as a means of transferring assets while minimising tax implications. By gifting assets during their lifetime, partners can potentially reduce the taxable value of their estate, thereby decreasing the inheritance tax liability for the surviving partner.

Understanding the nuances of inheritance tax is crucial for preserving financial legacies and safeguarding the interests of both partners. Cohabitating couples can take proactive steps, such as strategic estate planning, crafting comprehensive wills, and seeking professional advice in relation to cohabitation agreements, to navigate the challenges posed by inheritance tax. By doing so, they can ensure that their intentions are realised, their financial well-being is protected, and their loved ones inherit their assets as they intended in most tax-efficient way possible.

This article was prepared by Naomi Augustine-Walker, a private client solicitor in our London office. You can contact Naomi by email: Naomi.Augustine-Walker@wellerslawgroup.com or by telephone: 020 3831 2669 For our Bromley office please call 020 8464 4242 and for Surrey the number is 01372 750100.

Losing Capacity – Don’t leave it too late to get an LPA

Posted on by Wellers

Most of us will need to consider who will manage our affairs and look after us in our later life or, if and when we lose the ability to do this for ourselves.  It may be that we first have to consider this for our ageing parents or a family member.

Most people first experience the need for a Lasting Power of Attorney (LPA) because a friend or relative has lost capacity without making one.  If you lose mental capacity and have not made a Lasting Power of Attorney, your relatives, friends or even the local authority, can apply to the Court of Protection to be able to make decisions on your behalf as a “Deputy”.  You should bear in mind that once mental capacity for decision making has been lost there is no option but to apply to the Court of Protection, which will normally be a time-consuming and expensive process, often lasting in excess of six months and during which time assets may be effectively frozen.

Generally, the Court of Protection do not appoint deputies to make decisions about your health and welfare – instead preferring to deal with issues on a decision by decision basis.

Loss of capacity is not, unfortunately, something that is limited to old age. We therefore recommend all our clients prepare both types of Lasting Power of Attorney before they are needed.

What is an LPA?

An LPA is a legal document that enables you (the Donor) to choose people (Attorneys) to make decisions on your behalf, about such things as your finances, property and your personal welfare, at a time in the future if you become physically or mentally incapable of dealing with those affairs yourself.

Anyone over the age of 18 can set up an LPA providing they have the mental capacity to understand the meaning and the effects of it. There are two types of Lasting Power:

  1. Property & Financial Affairs (e.g. dealing with the sale of your house and paying bills and making investments on your behalf); and
  2. Health & Welfare (e.g. deciding which care home you go to or where you live and medical treatment)

Appointing attorneys

You can appoint as many attorneys as you wish.

You need to consider, however, how you want them to act in practice. There are different options for this such as ‘jointly’ (doing everything together) or ‘jointly and severally’ (acting either together or separately) or a mixture of the two.

You can appoint different people for the different types of LPA based on their ability to carry out their duties. You can give attorneys as much power as you like (they do by default have the same powers as the donor). You can also place conditions and restrictions on their power.

Replacement Attorneys, who would step in if your first appointed attorneys could no longer act, can also be appointed.

The Property & Financial Affairs LPA can be used as soon as it is registered (the court registration fee is £82 per LPA, though this is reduced if your income is below £12k per annum or if you are in receipt of certain benefits). This can be useful from a practical point of view, if for example, you still have mental capacity but have had an accident and wish others to do things for you.

Whilst you have mental capacity, your attorney must follow your instructions when making any decisions with you/on your behalf.

Health & Welfare attorneys will only be able to make decisions for you once you are unable to make those decisions for yourself (case specific).

What if I have an Enduring Power of Attorney?

Enduring Powers, since October 2007, cannot be created anymore. If your Enduring Power of Attorney was made correctly, signed and witnessed before October 2007 it should still be valid. Even if they are valid, however, there are likely to be issues with them and they should be reviewed.

In particular:

  • Enduring Powers do not cover health and welfare decisions – they are limited to decisions over property and finance.
  • Much of what is covered now when Lasting Powers are prepared professionally was not considered when Enduring Powers were made.
  • Enduring Powers have less safeguarding than LPAs as there is no requirement to register them until the Donor loses capacity. This may appear to be a benefit, but registration takes time and during that time the document can often not be used easily.

Why should I seek professional help?

Whilst you can prepare LPAs yourself, seeking professional legal help is the only way to ensure you receive the individual advice needed to complete the LPAs properly.

Preparing the forms correctly is only one aspect of putting effective LPAs in place for the future. Without individual advice and support it is likely only your family will find out if the LPAs have been well done.

All our service options include:

  • Reviewing your surrounding circumstances and what you wish to do (i.e. who you wish to appoint and why).
  • Advising on the options available both in terms of who to appoint and how this will work in practice.
  • Advising on the authorities, conditions, and restrictions you should include (and those you should not) and discussing alternate options with you to achieve your wishes.
  • Providing practical advice on issues you are likely not to have considered yourself.
  • Confirming the advice provided in writing by way of a written report.

The different service options are:

  • Advice only: you prepare the documents (we will provide you with a link to do this) and we review them and provide advice. You can then finalise the forms knowing they have been checked over and the advice you need has been provided; or
  • Advice & preparation: we provide advice and prepare the forms to include acting as your Certificate Provider (an independent person who confirms you know what you are doing, no one is forcing you to complete the forms and there is no reason for you not to prepare them) and you then finalise the documents; or
  • Advice, preparation & registration: this is a full service in which we do the work for you, on your instructions, through to registration of the LPAs.

 

The Team here at Wellers will ensure that you receive the advice you need to put the appropriate documents in place to suit your personal circumstances.  Get in touch today to start your LPA. For our London office please call 020 7481 2422 , for Bromley the number is 020 8464 4242 and for Surrey call 01372 750100.

Contact us by email: enquiries@wellerslawgroup.com

 

Capital Gains Tax – Changes to the Annual Exemption

Posted on by Aarti Gangaramani

What is Capital Gains Tax?

Capital Gains Tax (CGT) is payable on the disposal or sale of certain assets, this includes second homes, investment properties, art, antiques or shareholdings (held outside of an ISA or PEP).

In summary, CGT is calculated on the difference between the acquisition value of an asset and its sale or disposal value. This can also include gifted assets. The rates of Capital Gains Tax are either 18% or 28% on disposals of residential property and 10% or 20% on the disposal of other assets. Principal Private Residence Relief is available on the disposal of your main residence, making these disposals exempt from CGT. Entrepreneurs Relief is also potentially available on gains made on the sale of businesses charged to CGT.

Allowable expenses can also be deducted when calculating the tax due. One such allowance is the Annual Exemption Allowance (AEA). In April 2023 the AEA was reduced from £12,300 to £6,000 for individuals and personal representatives. The next tax year (2024/2025) will see a further reduction of the AEA from £6,000 to £3,000.

 

The Government had estimated that in this tax year (2023/2024) with the first reduction, circa 500,000 individuals and trusts could be affected by these changes to the AEA. By the 2024/25 tax year, the Government estimates that an additional 260,000 individuals and Trusts may be liable for CGT.

These changes have already had a significant impact on the administration of estates. The sale of houses, investments, shareholdings and other assets have all been affected. With further changes coming into place in the next tax year, estates where assets are sold at a higher value than the ‘date of death’ value and therefore subject to a CGT charge will be affected to an even greater extent.

Where CGT is not payable, where there is a gain of at least £50,000 there is still a requirement to report this to HMRC.

The reduction in the AEA together with the Government’s plan to halve the dividend allowance is expected to raise over £1.2 billion a year from April 2025. With the limit for Entrepreneurs Relief being reduced from £10 million to £1 million in 2022, CGT is set to be a big earner for the Government, widening the net of individuals, trustees, personal representatives and business owners who will need to consider its implications. Those who will now be subject to CGT need to be aware of how it may affect them and take appropriate advice.

 

For enquiries relating to Capital Gains Tax Changes, please contact Aarti Gangaramani.

By email: aarti.gangaramani@wellerslawgroup.com

By phone: +44 (0) 20 7481 6386