The COMPANIES ACT 2006 is being implemented in stages and makes significant changes to the procedures and structure of a Company.
EXECUTION OF DOCUMENTS
Deeds executed by a Company after 6 April 2008 can be executed
(i) by affixing the Company's common seal;
(ii) by signing of two Directors (or in the case of Public Companies or
Private Companies who choose to retain one,
(iii) by the Company Secretary and a Director); or
(iv) by a single Director signing in the presence of a witness who attests the signature provided the Company's Articles have been amended accordingly. The Articles can be amended by passing a special resolution and filing it at Companies House.
Provisions relating to the execution of deeds come into force on 1 October 2009 which will recognise the validity of a Deed executed by a Company only if it is duly executed by the Company and delivered as a Deed. Deeds will be presumed delivered upon execution unless the contrary is indicated.
COMPANY SECRETARIES
There is no longer any need to appoint a Company Secretary although an existing Company Secretary's rights and responsibilities remain unchanged.
DIRECTORS
From 1 October 2008 every Company must have at least one natural person as Director aged at least 16. All Directors are now required to place on the public record an individual address for service in addition to their residential address. Residential addresses will be held as "protected information" at Companies House.
FINANCIAL ASSISTANCE
From 1 October 2008 Private Companies will no longer be barred from offering financial assistance to assist in the acquisition of their own shares as the Companies Act 2006 lifts the old restrictions under the Companies Act 1985.
A Court Order is no longer necessary to make capital reductions, which will need to be supported only by a solvency statement.
SHAREHOLDER MEETINGS
Private companies need no longer hold an Annual General Meeting. 10% of shareholders can demand a meeting (5% in certain circumstances). If private company meetings take place they now require a 14 day notice period.
RESOLUTIONS
Ordinary written resolutions now require a simple majority of eligible votes and special resolutions a 75% majority.
ELECTRONIC COMMUNICATIONS
Provided shareholders are in agreement, electronic communications such as websites and emails can be far more widespread; although individual company members remain entitled to hard copies upon request. Electronic communications including the Company website must include details of the Company's name, registered office and company number
ARTICLES AND MEMORANDUM OF ASSOCIATION
From 1 October 2009 Private and Public Companies will have separate model Articles. The Articles of Association will be the Company's constitutional document. The Memorandum of Association will be a formal document recording the position of the company at the point of registration and will no longer need to specify the Company's objects. Provisions contained in the Memorandum of Association of Companies incorporated pre 1 October 2009, which fall outside the new limitations of the Memorandum, will be regarded as falling within the Company's Articles of Association. Existing Companies as well as those incorporated under the 2006 Act can elect to use all or part of the 'new' model Articles.
HOME INFORMATION PACKS (HIPs)
From 1 August 2007 anyone selling a home will need to consider whether the new Government Home Information Pack Regulations 2007 apply to them.
Under the new regulations any homeowner selling a property with 3 or more bedrooms is required to produce a �HIP� or �sellers� pack containing a number of documents before the property is marketed.
The Home Information Pack MUST contain the following mandatory documents:
- Pack Index
- Sale Statement - stating the terms of sale
- Energy Performance Certificate
- Title Documents - showing evidence of ownership of the property
- Leasehold information (if relevant)
- Search Certificates � including local authority enquiries
The Home Information Pack MAY also contain the following optional documents:
- Home Condition Report
- documentary evidence of any safety, building, repair or maintenance work
- any warranty, policy or guarantee
- information about the design
- information identifying the property including a description, photograph, map or plan
- relevant additional or supplemental search reports
We will be preparing Home Information Packs for anyone wishing to sell a property and are happy to do so with no further obligation if this is your only requirement. If you instruct us to act for you in the sale and/or related purchase we will include our charge for preparing your Home Information Pack in the firm�s final bill payable at the end of the transaction.
We are also happy to advise any potential purchaser interested in making an offer on a property on the content of the seller�s Home Information Pack for a fixed fee.
POWERS OF ATTORNEY
From 1 October 2007 when the Mental Capacity Act 2007 comes into force the existing simple 4 page Enduring Powers of Attorney will be replaced by two different types of Lasting Power of Attorney:
1. The Property and Affairs Lasting Power of Attorney can be used immediately and allows your appointed attorney to manage your property, money and affairs.
2. The Personal Welfare Lasting Power of Attorney and only be used if you lack the capacity to make your own decisions relating to your personal welfare or care such as deciding where to live or consent to or refuse medical treatment.
The new Property and Affairs Lasting Power of Attorney forms are 26 pages long and the Personal Welfare Lasting Power of Attorney forms are 24 pages long and these will need to be completed very carefully. The new Lasting Powers of Attorney cannot be used until they have been registered with the Office of the Public Guardian and a registration fee will have to be paid.
All registered LPAs will be able to be searched by health professionals such as doctors or care home owners.
AGE DISCRIMINATION
Under the Employment Framework Directive and Employment Equality (Age) Regulations 2006, direct and indirect age discrimination became unlawful on 1 October 2006.
If they have not already done so, employers should review their workplace policies and practices, particularly those relating to recruitment, retirement, occupational pensions and the termination of employment to ensure that their existing arrangements are not discriminatory in the light of the new rules. Employers will need to be particularly cautious as there is no upper limit on the amount which can be awarded where a dismissal is found to be discriminatory. The new rules aim to give workers equal pension rights whatever their age and include provisions preventing employers from setting a maximum age for contributions to occupational pensions.
Employees will soon have the right to work to a national retirement age of 65 and employers will have the duty to inform workers in writing of their intended retirement date and right to request to work beyond normal retirement age and will have to consider any such request.
Any employee dismissed, treated less favourably or put at a disadvantage in comparison to others at work because of his or her age, will have a potential complaint on the basis of direct or indirect age discrimination.
Employers concerned that they may not be fully compliant or employees who feel they have been discriminated against should seek prompt legal advice.
