My phone rings and I notice its my father, he never rings as he struggles to hear on the phone. I answer it and can’t believe what he is saying is happening. ‘Its your mother, she is kicking off again but this time she is throwing furniture around the house, and I don’t know what to do!’
I was on holiday, me and my family had travelled to Portugal for a well-deserved break. I had noticed recently that my father had marks on his hands and wrists, but he would never tell me how they came about. The carer had mentioned that he had found my father pushing my mother up the stairs from behind using his head whilst holding onto the stair rail. He had recently purchased another car, so soon after his other car was removed from the drive due to his doctor not allowing him to renew his driving licence. It was only a short while ago a taxi driver returned my mother home from shopping as she was found wandering around blankly and without purpose, a trip she did every week but now seemed to be struggling with.
‘Please Help me and come home’ my father exclaimed.
There was nothing I could do; I was sat on a beach with my family but had never felt so alone. My partners parents were both very healthy, but my father had Vascular Dementia and my mother had Alzheimer’s. Sometimes you would never guess that they were both suffering from a degenerative brain condition but other times it was apparent.
When I arrived back in the UK, I found out my mother had been taken away by the Police due to the risk she posed towards my father, she was being held at Millbrook in Mansfield under a section 2 order, meaning she would not be released until the medical professionals were confidant that her medication was working to suppress her anger. My father didn’t understand why she wasn’t coming home.
My mother never returned home, and she still resides in the most wonderful nursing home I have known, she has been a resident at Skylarks for over 7 years. Nowadays, I think she recognises me, but I am never sure, she doesn’t move much and spends most of her days sleeping and being fed.
My father was admitted to a care home a month before the Pandemic, he caught Covid and never returned to full health. Often when I was visiting him through his bedroom window would I notice other residents being removed by van, they had not been as lucky as my father and had perished due to Covid. My father peacefully passed away recently and has been laid to rest in his hometown of Nottingham.
You see, my father was born in Italy and my mother was born in Belgium, they met when they were children as my mother use to visit my fathers’ neighbours. They married young, gave away the family farm in Tremignon and moved to the UK to work. My father never stopped working nor did my mother, they were proud and wouldn’t accept any financial assistance from anyone. It was their belief that as parents you are to take care of your family, both financially and educationally.
But parallel to this I had to come to terms with the Court of Protection, an alien, intrusive, time-consuming, and costly institution, which was completely out of tune with what I was going through. I had previously sought an order to act as the Deputy for both my parents as advised by Social Services, this gave me the power to receive their money into an account in the names of myself, my brother, and each parent. It gave me the power to sell the family home and purchase another or to use the proceeds of sale to pay for any care needs.
A Deputy can be a close family member or – where there is no suitable relative – a stranger or an organisation, such as a solicitors’ office. But in its treatment of Deputies, the court does not distinguish between a close family member and a virtual stranger.
Who is the court protecting and from whom? As the weeks and months went by it became clear that the Court of Protection’s primary role was to protect my parents from me and my brother. I was doing all I could to look after my parents and to keep our lives in order. The Court was doing everything possible to place itself like a wedge between them and us, to protect itself from any accusations of wrongdoing.
To perform this unwanted task, the unwieldy organisation stepped into my life and took away my adult independence. The tone of the letters and the restrictions on how much and in what their money could be spent undermined my freedom and self-respect. And if I did not do everything I was told to do, I could lose the right to be the Deputy. An unknown person could step in and take over their accounts and the running of their lives.
Here are just a few examples of how the Court acted under the guise of “protecting” my parents.
Every year, the Office of the Public Guardian expected me to upload a financial return of ALL money spent from my parent’s accounts, how much energy has been used, what money do they hold in savings, who insures the house and how much does it cost, what’s spending money, how much have they given their grandchildren for birthday presents. Have they paid for any family meals, anything above £250 needs to be separately noted, what about the cash we use to give my father the belief he has money still, what care decisions have we made, who cares for him, the meals that are delivered, how much do they cost and who provides them? The reporting was endless and stressful, they wanted us to pay a Deputy Fee, a Deputy Bond. We must submit ‘returns’ every year, how do you place a cost on supporting your parents with their own money to lead as normal a life as possible whilst at the same time not knowing how much time you have left with your parents on this earth.
If I employed an accountant, they would charge in the region of £3000, if I felt the pressure was too much, I was informed that I could remove myself as a Deputy and employ the services of a professional at a cost to my parents.
As my parents Deputy I now had access to their accounts. But I was dismayed by the restrictions on my spending. I could write as many cheques as necessary up to £250. But if I needed access to more than that at any one time, I had to get permission from the Court or at the very least have a good reason to offer the court when I made those annual returns.
The nerve-racking experience was exacerbated by the fact that each time I phoned the Court, I spoke to a different clerk. I had to explain my distressing situation anew and then wait at least two weeks for a reply. I visited my parents daily. The court also sent a representative to visit him. I found it humiliating. I was dealing with doctors, nurses, and carers daily, yet I could not help feeling that I was the one being checked up on.
The Court of Protection, no doubt, has a part to play in the life of someone with no close family or friends, who is at the mercy of strangers. But in my case, it was an interfering, terrifying body using legal forms and archaic language to protect itself at huge cost.
After almost five years, my father died. When I eventually received probate, I cried with grief. A few months later, when I finally closed the Deputy account, and my independence and self-respect returned, I cried with joy. At last, I was partially free.
I continue to submit my mother’s accounts and operate under her Court Order, its easier now as she can’t do much for herself and doesn’t really have a life anyway, I doubt she will be with me for much longer.
Yet all this could have been avoided – if only I’d known how.
I miss my weekly get together with my mother and I miss my father’s singing.
LPA’s replaced the enduring powers of attorney in October 2007, but what are they and how can they benefit you?
LPA’s were created under the Mental Health Act 2005 and replaced the former enduring powers of attorney. The purpose is so that those you trust can help you should you ever lack capacity. For example, you may need support because you have Dementia or Alzheimer’s.
The five principals are:
1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to decide unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to decide merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
For the readers of this post AJK are willing to offer you a FREE home visit or Office appointment or Telephone Appointment to discuss your needs.
Flexible Life Interest Trusts (or Flit’s) are versatile trusts. They are slightly more complicated than an ordinary life interest or discretionary trust, but they combine the benefits of both. What follows is an overview of what the FLIT can be used for and what should be considered when advising on such a trust.
What is a Flexible Life Interest Trust?
A FLIT is essentially a combination of a life interest trust and a discretionary trust. The trust will name a life tenant and other discretionary beneficiaries. Whilst the life tenant, who is usually the testator’s surviving spouse or civil partner, is alive they are entitled to all income generated by the trust. The trust also includes a discretionary power that allows the trustees to advance capital to the life tenant.
When the life interest ends the trust will then continue as a discretionary trust for the discretionary beneficiaries. The life interest will normally end on the life tenant’s death, but this may be earlier as the life tenant may relinquish part or all their life interest or alternatively a FLIT may include a power for the trustees to revoke part or all the life interest.
How is a Flexible Life Interest Trust taxed?
The life tenant of the FLIT is treated for inheritance tax purposes as inheriting the trust assets. In the most common situation where the life tenant is the deceased’s spouse or civil partner, the spousal exemption will apply, and no inheritance tax is due on the deceased’s death. During the life tenant’s lifetime, whilst assets are held in the life interest there are no anniversary or exit charges payable, although this may change if part or all the life interest is revoked.
On the life tenant’s death, the trust assets are treated as part of the life tenant’s estate for inheritance tax purposes.
After the life interest ends, the trust is treated as relevant property. Anniversary and exit charges may apply from this point.
Due to the continuing discretionary trust on the life tenant’s death, RNRB cannot apply on the life tenant’s death if the deceased’s main residence passes to a FLIT, although the life tenant may still have their own assets owned personally that RNRB could apply to.
Why use a Flexible Life Interest Trust?
Asset protection is likely the main reason to place assets into a FLIT. Normally a FLIT would be used by a parent wishing to continue to benefit their spouse or civil partner but wishes to continue to protect assets for their children. The initial life interest allows the life tenant to benefit due to the entitlement to income and from the discretionary power to advance capital, but the assets held by the trust will be protected from third party claims such as bankruptcy or remarriage. When the life interest ends, the other discretionary beneficiaries do not inherit outright, and their inheritance is similarly protected from third parties if they are not in the best position to inherit at that time.
There are other reasons why a FLIT may be used alongside this, for example the discretionary trust on the life tenant’s death may avoid pushing a discretionary beneficiary’s own estate above the NRB and causing the beneficiary an IHT liability. The ability for the trustees to make gifts to the discretionary beneficiary’s whilst the life tenant is alive is also useful to make IHT planning on behalf of the life tenant using the trust assets as anything gifted to the other beneficiaries would be a potentially exempt transfer from the life tenant’s estate.
On 17th November 2021, the Department of Health & Social Care published an updated policy paper. The changes may take effect from October 2023.
Proposed changes – in brief, a person with capital below £20,000 will not contribute towards the cost of care. A person with capital between £20,000 & £100,000 will contribute in part to their care. A person with capital over £100,000 will self-fund their own care.
A lifetime cap of £86,000 will apply, BUT this cap does not include payments towards daily living costs such as, rent, food and utility bills (for both those in care and in their own home). Daily living costs will not exceed £10,400 per year.
Life expectancy – for male care home residents is 3.9 years and for female’s 5.3 years. Source: Office of National Statistics 2011-12.
At AJK we specialise in drafting Trusts inside Wills to ensure that your share of any property can be protected upon your death.
For the readers of this column AJK are willing to offer you a FREE home visit or Office appointment to discuss your needs.
General power of attorney are voluntary delegations of authority by the principal to the agent. The principal has not given up his or her own power to do these same functions, but rather has granted legal authority to the agent to perform various tasks on the principal’s behalf. In most states, powers of attorney can be and most often are unilateral contracts – that is, signed only by the principal, but accepted by the agent by the act of performance.
Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families.
A general power of attorney gives broad authorizations to the agent. The agent may be able to make medical decisions, legal choices, or financial or business decisions. … For example, you could create a special power of attorney which only allows your spouse to make medical decisions on your behalf or may be buying and selling properties for you in UK or overseas.
The General power of attorney would be useful if, for example, you are selling your home and the exchange of contracts is due to take place around the time when you will be away on holiday. You can appoint anyone your attorney while you live in other country and have property overseas or whole family can sent to one person to abroad to manage you’re financial or property matters.
A General Power of Attorney can be either general or limited to specific affairs. For example you could give a Limited Power of Attorney to an attorney just for the sale or the purchase of or single transaction or multiple transactions.
Information Post by Syeda
Lasting Powers of Attorney
Did you know that one in 14 people over the age of 65 currently live with the effects of dementia? The likelihood of developing dementia significantly increases with age. It can affect younger people too – there are more than 42,000 people under the age of 65 currently registered as suffering with dementia. Having Lasting Powers of Attorney (LPAs) put into place while you still have mental capacity ensures that your wishes can be carried out, and that you have someone you can trust and rely upon to make decisions which are in your best interests.
If you do not make LPAs, it may be necessary to make an application to the Court of Protection to appoint someone (known as a Deputy) should you lose capacity for any reason, not just dementia. Stroke, accident, illness, or any number of unforeseen events may cause you to lose the capacity to make decisions for yourself. The appointment of a Deputy is a long and expensive process, which can lead to disputes amongst family members. The Deputy appointed may not deal with you and your property and finances as you would wish. Why leave it to chance?
There is a common misconception that LPAs are only for those who have dementia related illnesses. Whilst it is true that a great many LPAs are registered when people are showing early signs of dementia, other illnesses could trigger a loss of mental capacity, for example stroke, coma, delirium, concussion, severe mental health problems, neuro-disability/brain injury, and alcohol and drug misuse.
What is a Lasting Power of Attorney?
A document in which you appoint someone to make the decisions and look after your affairs as you would do if you were able to.
There are two types of LPA –
Health and Welfare – this allows your Attorney(s) to make decisions on your health and welfare, but only when you no longer have the mental capacity to do so yourself.
Property and Finance- this allows your Attorney(s) to deal with your property and finance as per your wishes, even before mental capacity is lost.
It is, of course, possible to only have one of the two types, but it is usual, and indeed recommended to have both.
What can Adrian J Knight Ltd do for you?
We have many years’ experience of preparing and registering LPAs. We have a friendly and professional team, and are happy to meet with you at your home, in our shop, or over the telephone to explain our services to you. If you feel that LPAs are the right thing to do for you, or would like to have a chat about LPAs, then please call us on 01909 281277.
I would like to offer a massive thank you to the team for all their hard work and perseverance during the past 3 months of lockdown. I know we have found it tough at times but the way we worked together and learned new skills will never be forgotten.
We are open for business as usual and are COVID19 prepared.
Visits to our shop are limited to one family at a time and we do have ‘sneeze screens’ , gloves, masks and hand sanitiser. I would recommend calling us first to make a booking.
Home visits you will be expected to wear a mask and retain a social distance. Don’t worry , we provide the masks and offer you an unused pen to use and keep.
Stay Safe and thank you for your continued support.
For the time being our clients are asking their neighbours to witness their wills through the window and letter box, given that you use hand sanitisers and where possible gloves.
AJK are continuing to provide robust wills for both couples and individuals but have had to make changes as to how the wills are witnessed. We agree with the Prime Minister and welcome a lockdown to hopefully be free of this virus sooner rather than later.
Electronic signatures with or without a video call is not currently accepted as a deed, meaning that this would invalidate your will. Although other documents and contracts can be signed this way, the Law Commission looked at this in their consultation in 2017 and confirmed that, as the law currently stands, witnesses must be physically present. The consultation also recommended that, until technological safeguards are in place, legislation should be introduced to make it clear that electronic signatures DO NOT satisfy the current signature requirement for wills.
An Industry Working Group will consider the question of videoing of electronic signatures as is also applicable in other fields of law, any reform must ensure that there are no adverse impacts, particularly on vulnerable people.
The AJK team have measures in place to assist the most vulnerable in signing their wills, please contact us on 01909 281277 should you require help.
Stay Safe & Stay at Home
I would like to thank the following people for enabling AJK to adapt to working from home:
Matthew Tweed along with Heather McGlone are still working tirelessly to enable AJK to offer our services seamlessly online and soon we will have this in place, from daily webcam meetings to accepting instructions from clients to offering our drafted work either by way of email / portal and for those without access to modern technology AJK will offer an exclusive and safe remote attestation service , ensuring our most vulnerable clients can sign documents from the comfort of their homes.
Mark Walker from Walker Telecom has installed new lines into the AJK household to enable Adrian to run and manage the business from home.
Dave from www.commercebusinesssystems.co.uk for ensuring the beast of a printer is all set up and running in the AJK home / Office
All the AJK staff for remaining positive and simply getting on with business, AJK could not operate without you.
Adrian Knight, Founder