Appointing a director - succession planning

[4(T)]

Although he has solicitors for work I don't really know who it is or which to engage for personal affairs. My sister is reluctant to make dad feel worse about his predicament by forcing the issue of wills etc onto him now whereas I would rather get this sorted whilst I still have a chance.

Is there a third person who can break the ice? Family friend, uncle, solicitor, work partner?

Someone to tell him "look, you need to make a contingency plan here asap. Don't want to leave your kids with a mess to sort out."

I'm sure your father already understands that he needs to act. Probably he is worrying about raising the issue with you.

 

[soleil]

Lastly I hear that the Office of the Public Guardian can take 9 weeks to process the form. This may turn out to be useless if he deteriorates or dies within this period.

GDog

I'm sorry to hear that you are going through this.

Have you spoken to the Office of the Public Guardian on 0300 456 0300 to ask whether there is scope for making an emergency application?

 

[bobthebuilder]

GDog, you may not be aware, but the incorporation date of your father’s company is significant regarding appointing a director to a company with a sole director who is also the sole shareholder.

As I understand it, if the company was incorporated after the Company’s Act 2006, then your father’s representative can appoint a new Director. If it was incorporated prior to 2006, then the representative has to be apply for a Court Order to appoint a new director unless there a specific clause in the Articles of Association allowing otherwise. It’s highly likely that your father’s company is using standard model Articles.

I’m not entirely certain, but I think Representative can mean someone with power of attorney whilst the owner is alive. It certainly means the administrator of an intestate estate or the executor of a testate estate.

 

[GDog]

GDog, you may not be aware, but the incorporation date of your father’s company is significant regarding appointing a director to a company with a sole director who is also the sole shareholder.

As I understand it, if the company was incorporated after the Company’s Act 2006, then your father’s representative can appoint a new Director. If it was incorporated prior to 2006, then the representative has to be apply for a Court Order to appoint a new director unless there a specific clause in the Articles of Association allowing otherwise. It’s highly likely that your father’s company is using standard model Articles.

I’m not entirely certain, but I think Representative can mean someone with power of attorney whilst the owner is alive. It certainly means the administrator of an intestate estate or the executor of a testate estate.

It was after 2006. There is a clause allowing personal representatives to appoint (see the image I posted earlier) but my concern is that there aren't any if there is no will, or that it would be my mother's responsibility (who is not even able to use her own bank card)

 

[4(T)]

It was after 2006. There is a clause allowing personal representatives to appoint (see the image I posted earlier) but my concern is that there aren't any if there is no will, or that it would be my mother's responsibility (who is not even able to use her own bank card)

You need to pin down the legal definition of "personal representative".

As far as i am aware, it can be anyone with simple proof of authority from the director - a note or witnessed verbal statement.

I think the separate "representative of the estate" would be a family solicitor or the probate office supervising the disposal of estate, rather than a spouse who'd be the beneficiary of the estate.

It may be that the company's existing accountant, auditor or solicitor is considered a "representative" of the director/proprietor in this situation.

 

[dingerr]

It was after 2006. There is a clause allowing personal representatives to appoint (see the image I posted earlier) but my concern is that there aren't any if there is no will, or that it would be my mother's responsibility (who is not even able to use her own bank card)

Reading what you posted earlier, that clause only applies on death. From what you are saying, it sounds like you need an active director in place to protect the business and your mum.

You really need to speak to a solicitor.

 

[dingerr]

You need to pin down the legal definition of "personal representative".

As far as i am aware, it can be anyone with simple proof of authority from the director - a note or witnessed verbal statement.

I think the separate "representative of the estate" would be a family solicitor or the probate office supervising the disposal of estate, rather than a spouse who'd be the beneficiary of the estate.

It may be that the company's existing accountant, auditor or solicitor is considered a "representative" of the director/proprietor in this situation.

As the clause refers to actions on the event of death, personal representative means an executor (if there is a will) or administrator (if there is no will).

In the event of death, with no will, the OP will have to apply to the registry of probate for a letter of administration.

 

[soleil]

You really need to speak to a solicitor.

I would echo what Dingerr says, I think that this is a matter which needs professional input, there are too many complexities in it.

Find a Solicitor - The Law Society

Find A Solicitor is a free service from The Law Society for anyone looking for legal services in England and Wales that are regulated by the SRA

solicitors.lawsociety.org.uk

 

[dingerr]

First half hour is usually free, but even a few hundred quid for decent advice to put your mind at rest would be worth it.

 

[Bravo_Bravo]

Enduring power of attorney, gives absolute control. Execute with lawyer in the room, as witness.

Two needed; Health and Welfare, and Financial.

DO IT AS SOON AS POSSIBLE

 

[dingerr]

Two needed; Health and Welfare, and Financial.

DO IT AS SOON AS POSSIBLE

Well done Sherlock, try reading the thread and you’ll see why it’s not possible.

 

[Bravo_Bravo]

Well done Sherlock, try reading the thread and you’ll see why it’s not possible.

OP says his father has regained his facilities due to change in meds.

Lastly I should say his cognitive ability has improved markedly recently as a result of switching to Oxycodone instead of morphine.

He would now be in a fit state to sign documents, but this is complicated as most signatures need witnesses and he is an in-patient at a hospital with super-**** covid visiting rules. I've no idea what next week brings any more, it could be a discharge to home or death the way things have gone so far.

You mentioned reading the thread...

 

[dingerr]

OP says his father has regained his facilities due to change in meds.



You mentioned reading the thread...

Still can’t get a solicitor or witnesses in the room, can he Poirot.

 

[Bravo_Bravo]

Still can’t get a solicitor or witnesses in the room, can he Poirot.

Entirely possible to witness a signature without being in the room.

New fangled invention called a "window", Mycroft.

 

[dingerr]

Entirely possible to witness a signature without being in the room.

New fangled invention called a "window", Mycroft.

That would be great if they were even allowed in to hospital.

 

[Grim_Squeaker85]

And for any lurkers that see this thread and have kids, do them a favour. Write a will, grant them power of attorney and tell them what kind of funeral you want.

They don't need the extra stress of sorting this shit out in court on top of organising care or funerals.

Very true. No advice or assistance that I can offer you other than to say I'm sorry to hear what you are all going through.

I hope, when the time does come, that it is swift, painless and that you all have a chance to say goodbye.

Anything you have to say, say it to him now, as you'll regret not doing it when it's to late.

Best wishes

 

[dingerr]

are Macmillan any good for advice with this sort of thing?

 

[GDog]

That would be great if they were even allowed in to hospital.

Having read the earlier post on how wills may be witnessed now it should be achievable using video conferencing if I'm in there filming him sign it in hospital whilst some independent relatives/witnesses watch. Some extended family are back on Saturday who may be suitable candidates.

This rule doesn't apply to LPA - because everything the Government does is a shambles - but if I can get supportive witnesses (likely extended family) to go through the same process at the time it should be sufficient.

Visited today with my mother (if you time it right you can get away with breaking the rigid covid rules... sometimes), he seemed notably more depressed (which is understandable).

I broached the subject of making a will as my mother was also there and she is getting increasingly paranoid about things happening without her. He indicated it was something he'd have to sort out when he was feeling a bit less awful. Having read his mood I wouldn't have bought it up, but it seemed important to ensure my mum could see me starting this conversation in her presence to alleviate her paranoia. The details will have to wait another day - whilst I'm acutely aware that every extra day of more procrastination just increases the risk of losing control.

 

[bobthebuilder]

It was after 2006. There is a clause allowing personal representatives to appoint (see the image I posted earlier) but my concern is that there aren't any if there is no will, or that it would be my mother's responsibility (who is not even able to use her own bank card)

If your father dies intestate, then an Administrator has to be appointed to manage the estate. Usually, that is the closest living relative; you, your mother and sister will have to agree who does it. Or you could appoint an independent Administrator if the estate is large and complex.

The agreed Administrator then applies to the Probate Office for a Grant of Representation in a similar way to how an Executor applies for Grant of Probate. Once received, the Administrator is the representative of the estate and can appoint a new Director.

Practically, there is near zero difference between being an Executor nominated in a will and an Administrator. An Executor has to distribute the estate in accordance with the will, an Administrator in accordance with the appropriate laws. The tasks involved are the same.

All of this takes time; we didn’t receive Probate for my father’s will for 8 months, by which time it was too late to do anything with his business.

 

[GDog]

My concern is that the administration will default to my mother, who isn't equipped to do the job. If he dies intestate I'm not sure if we can take control if we are relying upon her.

This crisis is complicated because my mother hasn't had to do anything for herself in the last 30 years, suffers regular panic attacks and has some narcissistic characteristics that mean I don't feel able to stay in the family home and retain my sanity.

I want to help her and support her in becoming more independent but instead I get to listen to the broken record of her problems over and over again. I'm trying to chip away at the basics of running household finances by getting her to open her own bank account tomorrow but I suspect it will just end in recrimination and pouting again.

She is creating more work and consuming more energy than my father is, and he is the one that's truly suffering right now. Whilst I realise this is a difficult time for everyone, I'm close to throttling her.