Hodge Jones & Allen: Why is it important to make a living will?

Living Wills, also known as Advance Directives, are a written record of your wishes about the medical treatment and care you would want to receive if you were incapacitated and were unable to make decisions or communicate your wishes.

In September 2011, the Court of Protection ruled in the case of 'M' that withdrawing life support treatment from a person in a minimally conscious state was not in that person's best interests.

'M' had sustained brain damage in early 2003 following an illness and had been entirely dependent on others for her care since then. There was no prospect of any recovery. She appeared to be unconscious.  It was thought that she was in a persistent vegetative state but doctors later concluded that she was in a minimally conscious state.  

After all attempts to bring about a recovery had failed over a period of 8 years, her family had applied for life sustaining treatment to be withdrawn on the grounds that 'M' had no quality of life.

The Judge indicated that if 'M' had left a Living Will or Advance Directive stating that she did not wish to receive life sustaining treatment then the Court would have agreed to the request from 'M's family for treatment to be withdrawn.  However, as there was no written record of 'M's wishes, the treatment must continue.

Such tragic cases serve as a reminder of the need to draw up Living Wills.  An alternative procedure is to appoint a friend or relative to act as your Attorney under a Lasting Power of Attorney for health and welfare.

Philippa Barton

Hodge Jones & Allen

020 7874 8300

pbarton@hja.net

Hodge Jones & Allen: Reasons why it is important to make a will

Two out of three people die without making a Will.  When this happens, the estate is distributed in accordance with a rigid set of rules known as the intestacy rules.  Spouses and children receive a set sum.  If you do not have a spouse or children, then relatives take in order of priority. This can have disastrous consequences.

Disadvantages of Dying Without a Will:

1. If you are elderly with no immediate family this could mean that your estate passes to distant relatives that you have not seen in years.  Friends, charities and relatives by marriage get nothing. Genealogists have to be employed at great expense to trace all the members of your family.
2. If you and your partner are not married, your partner will receive nothing on your death.
3. If you and your spouse do not own assets jointly, then your spouse may be forced to sell the house to pay the share of your estate due to your children.

Advantages of Making a Will:

1. If you have children from a previous relationship, you may wish to make provision for your spouse during his/her lifetime and then ensure that your estate passes to your children after the death of your spouse. Otherwise, if your die first, it is possible that your spouse could remarry or change their Will, cutting out your children.
2. You can choose guardians to look after your children if they are orphaned under the age of 18.
3. If you care for a disabled person who receives means tested benefits or local authority funding, we can draw up a Will which sets up a trust fund for the disabled person without effecting their entitlement to benefits or funding.
4. If you own a property abroad, it is important to make a Will both here and in the country where you own the property.  We can advise on foreign property issues.
5. Setting out your instructions in a Will prevents future arguments among family members.
6. If you make a Will you decide who gets what and when.  You decide who will carry out your instructions.  You can take account of individual circumstances so as to ensure that your estate is distributed exactly as you wish.

Home made wills

You can buy a Will from a stationers and complete it yourself. However unless this is checked by a solicitor you will not know whether you might have made a mistake. This could make it invalid or if what you have said is not clear enough the gifts fail because no-one can be sure what you meant. Also home made wills can be challenged on the grounds that you lacked sufficient capacity to make a will or that you were coerced into making the will. When a will is drafted by a solicitor who specialises in will drafting, the solicitor will check the issues of capacity and coercion and make a written record confirming this. This makes any challenge to the will much harder to prove.

Philippa Barton

Hodge Jones & Allen

020 7874 8300

pbarton@hja.net

Hodge Jones & Allen: The Rehabilitation Code

Early rehabilitation after a spinal cord injury is very important.  This will initially be provided by the NHS but sadly funding and staffing issues mean that a comprehensive rehabilitation programme is not always possible.  However if the injured person is bringing a claim for compensation, rehabilitation can often be provided through something called The Rehabilitation Code. 

The Code was introduced in 1999 to promote the use of early rehabilitation and intervention when someone has been injured in an accident, that was not their fault, and they are making a claim for compensation.  The Code was developed by both insurance companies and solicitors to try and encourage early co-operation by all parties when arranging rehabilitation. 

The Code is not compulsory but all parties are encouraged to use it where appropriate.  If liability is admitted the majority of insurance companies will co-operate, comply with the Code and fund rehabilitation.  Most insurance companies will have their own preferred rehabilitation providers but they will be independent.  However where liability is denied in full the defendant insurance company will not comply with the Code.

If the Code is used then the first thing that is needed is something called an Initial Needs Assessment. An Initial Needs Assessment enables everyone to work together with the injured person, and their families, to identify the individual rehabilitation needs of the injured person.  The Assessment is done by a qualified independent party and a copy of the Assessment will be sent to both the insurance company and solicitors at the same time. The Assessment will consider both the short term aims and the long term goals so that a programme can be put in place as soon as possible.  Each Assessment is different because it deals with individual needs.  However a typical Assessment could include things such as:-

1. Treatment and care needs.
2. Driving/transport needs. 
3. Personal activities on a day to day basis, which can include household chores and the impact on hobbies.
4. The impact the injury has on the injured person’s ability to work and how if possible to get back into working if possible. 
5. Lifting/carrying and mobility needs.
6. Social circumstances including how this impacts on family relationships and housing needs and situations. 

Identifying these immediate (and long term) needs at an early stage can make a significant difference to an injured person’s life and future recovery.  Therefore it is not rocket science to see that the Code works to everyone’s advantage and should be used wherever it is appropriate.

Simon O’Loughlin and Karen Mann are both solicitors in the Personal Injury Department at Hodge Jones and Allen Solicitors

Hodge Jones & Allen: Compensation for Spinal Injury Victims of Violence

Most people are aware that, if they have been involved in an accident that was not their fault, they are entitled to bring a claim for compensation.

But what if it wasn’t an accident?  What if the injuries have been caused by an act of violence?

Statistics show that every year in the UK around 3% of spinal chord injuries are caused by a violent encounter, including shootings, stabbings and domestic violence.

In the UK there is a government Scheme in place to compensate the victims of violent crime. This Scheme is managed by the Criminal Injuries Compensation Authority (CICA).  If you have or you know someone who has suffered an injury as a result of a crime of violence, it is important that they are aware that they may well be entitled to compensation under this Scheme.

The CICA can award anything from £1,000 to £500,000 to victims even if the offender is not identified, caught or convicted.

 Compensation can be claimed under the Scheme for:

• The injuries themselves – both physical and psychological (between 20-30% of people with permanent paralysis are affected by depression).
• Loss of earnings (past and future).
• Special expenses (past and future including the cost of treatments, aids and care).
  
  

There are a number of grounds (some of which are challengeable) on which the CICA can refuse to make an award, or make a reduced award. These include where: 

• The victim has a criminal record.
• The incident was not reported to the police or the victim failed to cooperate with police investigations.
• The victim still lives with the person who injured them.
  
  

The Scheme also entitles the CICA to reduce the award for special expenses such as treatment and care by taking into account what might already be available through other public agencies such as the NHS or local authority. In reality, the care that such agencies can provide is often inadequate.  Any attempt by the CICA to make deductions from the award is something that the applicant would normally be advised to challenge.

Save for in exceptional circumstances, applications to the CICA must be made within two years of the incident in question.  Since the process can be a lengthy one, even with skilled representation, applications should be made at the earliest opportunity. 

Hannah Sellars 

Partner, Personal Injury Solicitor and Head of Hodge Jones & Allen’s CICA Team 

hsellars@hja.net

Hodge Jones & Allen: When is a reasonable adjustment reasonable?

Disability discrimination law means that employers need to be flexible and proactive about making “reasonable adjustments” for employees with disabilities to allow them to do their job. There should be a level playing field between disabled and non-disabled employees so that as far as it is reasonable, steps are taken by employers to remove, reduce or prevent the obstacles a disabled employee could face at work.

If employers fail to make reasonable adjustments, employees with a disability can bring a claim for disability discrimination in an Employment Tribunal. Compensation for disability discrimination is unlimited.

Sometimes it will be clear that an employer has not made a reasonable adjustment for an employee where little has been done to help an employee who is absent from work due to a disability. At other times, an employer can point to steps taken to make reasonable adjustments. Many claims arise though when these steps look like little more than “window dressing”.

So what is a reasonable adjustment?  This will vary from employer to employer and depends on the size of the employer and available resources. 

Here are some examples of reasonable adjustments:

• allocating some of an employee’s duties to another person;
• altering working hours;
• adapting work premises;
• acquiring additional equipment or modifying equipment;
• modifying disciplinary or grievance procedures;
• adjusting redundancy selection criteria;
• allowing regular breaks;
• changing an employee’s workplace;
• offering training;              
• changing assessment processes;
• including a disabled parking space in the car park.
  
  

Employers must think outside the box and whilst employers may be more alert to the need to identify equipment and other physical changes that can be made to overcome barriers, some of the other adjustments referred to above can get overlooked. 

It is wrong to assume that disabled employees will be absent from work any more than anyone else. However, disabled employees may need additional time off for treatment or for routine medical checks. It would be a reasonable adjustment to allow for this.

Employers can take into account the cost of making the adjustment and whether the adjustment will in reality make a difference. This is all part of the reasonableness question. However, reasonable adjustments do not need to cost the earth.

A common sense approach and open mind is a good place to start when thinking about making reasonable adjustments for disabled employees.

Rhian Radia

Solicitor and Head of Employment Law at Hodge Jones Allen LLP 

rradia@hja.net