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.  

Post Lockdown

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.

Adrian Knight

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

COVID-19 AJK PUBLIC NOTICE

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.

 

Thank You

 

Adrian Knight, Founder 

COVID-19

As COVID-19 continues to spread throughout the UK, we’re doing all we can to protect the health and wellbeing of our staff. We also want to ensure we’re well prepared to continue to provide a good service to customers.

Social distancing

We’re quickly becoming more aware of how the virus spreads and implementing changes to our ways of working to limit contact between our employees and customers.As well as introducing home working rotas for our employees who are able to fulfil their roles remotely, our Estate Planners will soon be pausing face-to-face meetings and providing you with the same level of support by telephone, Skype or other web-based solutions. We believe this is the right thing to do to limit the spread of COVID-19 within the community.

Preparing for further disruption

As restrictions on movement and businesses become increasingly likely, we may face challenges to maintaining our service at its current level.  

While we’re actively working to mitigate any potential disruption for you, we’re asking you to take action now to make sure you can access the information you need if, for example, we’re unable to operate from our head office for a period of time.

Lasting Powers of Attorney and Wills, will be completed remotely, Adrian is currently looking at ways these documents can be signed to make them legally binding. If you are considering either of these documents then I would advise you arrange them without delay.

Meeting our customer needs

We’ve already seen early signs that more customers are looking to our services and it’s important we support you to meet those needs.

 

Given the potential for delay to paper application forms if we see disruption to the postal service or we’re unable to access to our head office for any period in the coming weeks, we recommend you use paperless applications if you’re set up to do so.

 

Staying in touch

We have sent our offer to help to our most vulnerable clients, we will be offering 3 days a week telephone calls, help with shopping and prescriptions.

As a situation that’s evolving rapidly, we’re committed to keeping you informed of further developments and any changes that may impact customers and your business.  

1. Only naming a single beneficiary.

A key element of a discretionary trust is that there must be multiple potential beneficiaries who can benefit from it. The trustees’ discretion is over not just how to manage the capital and income of the trust fund, and when to make distributions, but who those distributions should be made to.
If there is a single beneficiary and no potential for new beneficiaries to be added to the trust then what you have is not truly a discretionary trust at all. For tax purposes it would be treated as either a bare trust or an interest in possession, depending on the default clause.

2. Having a very limited pool of beneficiaries
Only naming a couple of individuals can work fine initially. The trust could then be faced with the same issues as described in point 1.

3. Misunderstanding the point of a default clause

A discretionary trust can last for up to 125 years. This is the maximum perpetuity period allowed by law according to the Perpetuities and Accumulations Act 2009. The reason English trusts have a maximum perpetuity period at all is because there is a general legal principal that a person cannot tie up their assets in trust indefinitely. At some point the assets have to actually vest in someone. This is known as the ‘rule against perpetuities’, and sometimes ‘the rule against remoteness of vesting’.
What this means for discretionary trusts is that there needs to be a default beneficiary, and this needs to be a person who can take any assets in the trust fund at the point the trust ends. The circumstances in which a discretionary trust will end with assets still in it would be:
a) All of the potential beneficiaries have died.
b) The trust has reached the end of its 125-year perpetuity period.
Without a valid default clause any remaining funds result back to the testator’s estate, so in a worst scenario where the discretionary trust was a trust of residue the resulting fund would pass on intestacy.

IF YOU WOULD LIKE MY TEAM OF EXPERTS TO CHECK YOUR TRUSTS FOR FREE THEN CALL 01909 281277

What about my grandchildren?

Order of entitlement Intestacy – Should you die without a Will

Leaves a spouse and no children then the surviving spouse takes the whole of the estate (NET estate)

Leaves a spouse and issue (child) spouse entitled to all personal chattels (tangible, movable property) there will be a statutory legacy of £250,000.00 plus ½ of the residuary estate and then any issue takes equally the other half of the residuary estate.

Parents (no surviving spouse or issue) then parents will receive equal shares in the estate.

Brothers and sisters of the whole blood (share both parents) shared equally between them

Stepbrothers and stepsisters (who share 1 parent)

Grandparents

Uncles and aunts of whole blood (mothers or fathers’ real brother or sister)

Step uncle and aunts

Finally, The Crown or Dutchee of Lancaster of Cornwall

Funeral Plans

To say talking about funerals can feel a bit awkward is something of an understatement. But when you stop and think about it, it’s really just as easy to discuss as life cover or your inheritance planning.

We will all need a funeral one day. So a funeral plan is more than “just in case” product. It’s one that provides benefits of real value – peace of mind for now and help for your loved ones in the future.

By planning ahead now, you can make your wishes known, which can make things so much easier for those you love, at a difficult time. Plus, you can avoid the worry of setting funds aside later on, or leaving the financial burden of the funeral costs to your loved ones. That’s why now a good time to start the conversation.

Deeds Of Variation

A Deed Of Variation can be used to change a will up to two years after the date of death where all those affected by the alteration agree to the change. Typically it is used to redirect the stated benefit in a will form, say a child to, say, a grandchild to keep down the inheritance tax potential on the child’s estate; specialist advice should be obtained from a solicitor on this potentially useful tool. The effect of the Deed Of Variation is to rewrite the will as if the deceased person had made the new and altered instructions in their will.

-Extract from The Good Retirement Guide 2019 by Kogan Page, edited by Alan Esler Smith.

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.

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