As a deputy you’re responsible for making decisions on behalf of someone who may not have the capacity to do so. Depending on whether you’re a lay, professional or public authority deputy, when you first receive your court order, you might know the person very well, or you might not know them at all. This will affect the way you make decisions for them.
We always say the first thing you should do when you receive a court order is to get to know the person, if you don’t already. This is so that when you do need to make a decision, you’ll know if you can help them make it themselves. If they can’t make the decision it will help you choose the right thing, that in their nest interests.
Even when you know the person well, you should always be guided by the Mental Capacity Act 2005 (MCA). Section 1 of the Mental Capacity Act sets out five basic and fundamental principles which all those working with people over the age of 16 should adhere to.
- A person must be assumed to have capacity unless it is established that he lacks capacity. (subsection 2)
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (subsection 3)
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (subsection 4)
- An act done, or a decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made in his best interests. (subsection 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. (subsection 6)
– OPG In Touch Spring 2018
It is never a nice thing to think about what might happen upon your death, but we all have a choice over where our wealth and belongings go. But only if we make a Will.
The dangers of dying without a Will – a situation known as intestacy – are great as you lose control of where your estate ends up. If you have a spouse and direct decedents (children, grandchildren) it flows through them, if not it goes via your parents, or if they are deceased via siblings if you have them. The rules differ slightly between England, Wales, Scotland and Northern Ireland.
The risk is especially acute for people in relationships who aren’t married or in a civil partnership. They will inherit nothing without a Will in place leaving them assets, potentially jeopardising the roof over their heads. Not having a will could also mean an elderly surviving parent gets all the assets – even if you are estranged from them – rather than a sibling which may in term mean more of the parents estate will become subject to inheritance tax. Even if you are married and your assets go to your partner without a Will their financial future could be at risk if the assets are not ring fenced for them. For example, your former partner might re marry and later get divorced with their ex-partner receiving assets that could’ve benefitted the children.
So why are so many people leaving it to chance? The main reason for this lack of preparation appears to be apathy. The most common response (38%) when asked why people to not have a will was that they simply “hadn’t got round to it yet” this was even higher for those 45 and above, where 50% of respondents admitted they “hadn’t got round to it” Other reasons cited include not having enough assets to write one (32%) and feeling too young to worry about one (24%) although this response was, as would be expected, the highest amongst those aged 18-24 (71%).
Amongst those who do have a Will, about one in four (23%) admit it never reviewing it. Changes in circumstances such as relationships and family births and deaths, as well as legal tax changes mean that Wills should be reviewed periodically.
- The Legacy Year Book 2019
Sometimes, a gift is given by a person who contemplates that they may die soon. This is known as a “gift in contemplation of death” but is commonly referred to by its Latin translation of “donatia mortis causa.”
A gift of this type is ordinarily made by people who are very ill or due to undergo serious surgery and make a gift during their lifetime which will take effect on their death.
As no legal documentation (or any documentation for that matter) is required to make a donatia mortis causa, there are few rules which apply. In addition, there is no need for probate or execution unlike a Will.
What are the Conditions for these Type of Gifts?
To qualify as a donatio mortis causa:
- The gift must be made by the donor in contemplation of the donor’s impending death.
- The gift must be contingent on the donor dying.
- The donor must part with the gift or deliver it in some way to the donee.
- The subject-matter of the gift must be capable of being given away in this manner.
If there was a gap of several months after the gift had been made and at the time of the gift being made, the donor was not seriously ill/contemplating death from a known cause, the gift will simply not stand.
Who has Ownership of the Gift when it is Made?
Once the gift is made, the donor would give up control of the gift as soon as it made to the donee.
However, the donee would not absolutely own the gift until the donor has deceased. The reason for this is because if they survived the illness or operation (as per the examples used above), the gift would simply be void and the donee would no longer have any ownership right to it. The donor can revoke the gift at any time before their death which is why the donee would only own the gift on the death of the donor,
Are Deathbed Gifts Valid?
Deathbed gifts are perfectly valid providing the above conditions are met.
However, as these gifts are made when the person is on their deathbed and extremely vulnerable, issues can arise with regards to the donor’s capacity and whether they understood the effect of making the gift – especially gifts of high value. As with ensuring the donor had capacity at the time of making the gift, it would be important to somehow ascertain that they were not placed under any undue influence either.
What if I Already have a Will?
Ordinarily, a Will would govern what happens to assets on a death. Donatio mortis causa is an exception to that rule, which states that providing the gift was made in contemplation of imminent death, it will override anything in the Will or under intestacy. This is likely to cause conflicts between potential beneficiaries who are likely to contest the validity of the deathbed gift.
Challenging a Deathbed Gift
Courts will assess in detail how the deathbed gift was made and in what circumstances. It will be upheld only where there is clear evidence that the conditions for a valid gift are met. However, each case will be considered on its own facts.
Whilst deathbed gifts are perfectly valid if made correctly, it is of course better to dispose of your assets properly by way of a Will which will enable you to include trusts, set out funeral wishes and name guardians for minor children for example.
It is important to ensure you review your will regularly to prevent death bed gifts being made and then potentially challenged by disgruntled family members or those who were due to benefit under the Will. We recommend a Will is reviewed every 3-5 years or when there is a change of circumstance such as marriage or children.
To put a Will in place for you or your loved ones, please contact one of our members today.
A report commissioned by Age UK highlights the different approaches to long-term care across a group of countries in the developed world, and how they compare to the system in England.
The findings suggest that creating a sustainable social care system fit for a rapidly ageing population is a challenge in every one of these countries, which none has completely overcome. However most the countries reported have grasped the nettle and implemented significant reforms during the last 25 years. For example Germany began to modify the system in 1995 and Japan in 2000. Over the same period, despite two Government consultations, two official commissions, five Green and White Papers and one Act of Parliament, England’s system of means tested care funding is broadly unchanged.
It is notable that England has a stricter means test than the other countries examined in the report. England has a fixed means test limit for all long term care services, meaning anyone with savings or assets above £23,250 has to pay all the costs of their long term care (with tapered means tested support available to those with savings and assets between £23,250 and £14,250). Even those with savings and assets below £14,250 threshold will still be expected to pay a contribution towards the costs of their care through a deduction from their state pension. Other countries have more progressive systems, either providing a non means tested basic level of support (Germany), capping the level of co-payment for all (at 10% in Japan), or using a more generous and gradual means test (France).
- The Legacy Yearbook 2019, correct as 21/11/2019
We have had a very enjoyable morning chatting over scrabble and dominoes whilst informing the public of what the benefits are regards planning for the future.
Why a Lasting Power of Attorney?
There are a number of reasons why you might need someone to make decisions for you or act on your behalf:
- This could just be a temporary situation: for example, if you’re in hospital and need help with everyday tasks such as paying bills.
- You may need to make longer-term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.
FREE 90 minute home visit within the community please call 01909 281 277
We all spend our lives working to build our lives and increase our assets to lead a happy and satisfied life. You may have a house(s) or flat(s), shares, savings, investments, personal possessions and so on. All of these assets form your “ESTATE”. Making a Will ensures that when you die, your estate is being shared according to your wishes and is later owned by the people you wish.
Everyone needs a Will. Your Will lets you decide and control what happens to your estate after your death. If you make a Will, you can also make sure you do not have to pay more inheritance Tax than required. If you die without a Will, then law decides who gets what and how much from your estate.
Here are few things which you need to consider before making a Will:
- Layout your assets. Finalise what you own and what are your liabilities.
- Decide who would be the Beneficiaries – who gets what after your death. If any of the beneficiaries pre-decease you, who would you like to benefit from their share? Their partner, or children or anyone else? Or would you like it to fall back in your estate?
- Executors/ Trustees of your Will – They are the people who would be responsible for managing your estate according to your Will and implementing your wishes after your death. They should be the people you trust and believe would work in the best interests of your wishes after your death.
- Children and Guardians – If you have minor children, it is important to consider who would look after them after your death. For such a reason, you can appoint a guardian in your Will to look after your minor children. But you need to discuss such a scenario with the persons you would be appointing as Guardian before making a Will.
- Specific Gifts – You need to map out what gifts you would like to make through your Will and to whom. It can be in the form of money gifts or specific property or any of your personal possessions.
- Charities – You can also make a gift to any charity through your Will. If there is any particular charity that you have an affinity for, then leaving a gift for them would be perfect way to acknowledge it. Making a gift to charity is exempted from any Inheritance Tax liability.
- Residuary Estate – This is what is left in your estate after you have made all the gifts and given away our assets and paid all the liabilities. You need to decide who you would like to receive or benefit from your residuary estate. You can leave your residuary estate either to your partner, or children, or charity or any other individual(s). If you want to leave it to your minor children, then such an estate would be held on trust for them till they reach the age of 18 or 25.
- Exclusions – This area lets you exclude certain people from benefiting from your estate upon your death. It could be your previous partner(s), or people from other family complexities, or people you specifically do not want to benefit from your Will.
- Funeral Directions – Before making a Will, you need to consider about your preferred funeral arrangements: would like to be cremated or buried? Any specific place for burial? If cremated, where would like your ashes to be placed or scattered? Would like to donate organs?
- Storage – It is important you store your Will in a safe place and let your family members or executors know where it has been stored in the event of your death. We at ADRIANJKNIGHT LTD do offer a storage facility, where your important legal documents can be stored safely and securely by our regulators at Lincoln and would also be stored at National Will Archive.
- Review – It is important to review your Will every 2 or 3 years and update it in case of any changes in your life – family or financially.
It is sensible for you to consider what will happen if at any time of your life, you are unable to manage your own affairs, whether temporarily or permanently. Loss of mental capacity can occur at any age as result of accident or illness. It is usually better if you have chosen and authorised other trusted person(s) to act on your behalf. This can be done by creating and registering the Lasting Power of Attorney.
What is a Lasting Power of Attorney?
The Lasting Power of Attorney (LPA) is a legal document which lets you appoint another trusted person(s) to act on your behalf. Under an LPA, a donor is able to confer on the attorney(s) authority to make a decision about the donor’s personal welfare and/or the donor’s property and financial affairs.
Anyone over the age of 18 can have an LPA. However, it is actually a good idea to set up an LPA as soon as possible especially if you have a condition which is likely to cause a loss of mental capacity later on, such as dementia.
What are the types of LPA?
There are two types of LPA:
- Property and Financial Affairs: This LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension o benefits and even selling your home.
- Health and Welfare: This LPA covers areas surrounding your health and well being, including decisions around your daily care (washing, dressing, eating etc), medical care and treatment or whether it is time to move into care home.
Who can be an Attorney?
The attorneys need to be over 18 and not subject to a debt relief order or declared bankrupt. However, it is advisable to select person or persons who know you well, is organised and interested in ensuring your well being and most importantly who can be trusted with such important decisions of your life. You can also select legal professionals for being your attorney.
A person(s) selected to act as an Attorney can refuse to act and so it is advisable to consult with them before signing and registering the LPA. Once it is registered, if the attorney refuses to act an Attorney, it is known as “revoking” an attorneyship. If the LPA is registered and attorneys must act jointly (ie all together for all decisions), revoking the attorneyship will invalidate the LPA and a new LPA will have to be made, unless there are replacement attorneys ready to step up. If the attorneys act jointly and severally, then the remaining attorneys can continue to act even if one of them revokes their attorneyship.
New attorneys cannot be added to a registered LPA. In such a case, a new LPA would have to be made and registered with the Office of Public Guardian.
Why is a Certificate of Capacity required?
A Certificate of Capacity is required to establish that the donor, at the time of making an LPA:
- Understands the purpose of the LPA and the scope of the authority conferred under it;
- No fraud or undue pressure is being used to induce the donor to create the LPA; and
- There is nothing else which would prevent an LPA from being created.
What is the price for an LPA?
The price varies depending on whether you are setting up an LPA in England and Wales, Scotland or Northern Ireland. In England and Wales, it costs £82; in Scotland it costs £73 and in Northern Ireland it costs £115. These fees refer to each type of LPA, so if you are setting up two types (ie Financial and Property & Health and Welfare), you will have to pay the fees twice. However, if your income is less than £12,000 per annum you can be eligible for certain financial exemption or remission depending upon valid financial evidence for the same.
How much time is required for registering an LPA?
The LPA cannot be used until it is registered with the Office of Public Guardian. Registering an LPA usually takes around 8 to 10 weeks and sometimes even longer. This allows for the time needed to allow for the notification of those in the “People to be notified” section. Once registered, the LPA is valid and may be used by the attorney(s), subject to any express restrictions mentioned in the LPA.
What would happen if I do not make an LPA?
If you do not make an LPA and become unable to make decisions for yourself, it can result in serious financial, legal and emotional problems for your family. Your finances could be frozen until the Court of Protection appoints a deputy. You would have no control over who is appointed and family and friends do not automatically have the right to take over your affairs.
You can choose to make an LPA either with or without any legal professional. Many people however choose a legal professional to make sure that everything is filled out correctly and does not cause hassles in setting it up.
As part of writing their Will a testator will choose people they trust to act as their executors after their death. These are the people who will deal with the administration of their estate and distribute it following the terms of the Will. Of course sometimes many years pass between the writing of the Will and the testator’s death and in this time things can change. The executors could pass away before the testator, or lose capacity, or when the time comes be otherwise unable or unwilling to act. So what happens if there are no executors to act when the testator dies?
The sad truth is that there is one thing that we can never escape and that is death. Following the death of a loved one closing down someones Facebook is almost certainly never going to be on the top of the agenda but in the social age it’s likely to become a consideration. With over 30 million UK users on Facebook alone there are a lot of people that will ask this question at some point: ‘what happens to my social media accounts when I die or what do I need to do to close an account after someone has died?’
The idea of writing your own Will, on first glance, looks like a good one. The idea of saving money, educating yourself a little and having a document which informs your executors about how you would like to have your estate distributed sounds great, right?