My colleagues and I have recently been increasingly involved with giving talks to local charities and elderly action groups on legal issues that affect elderly and vulnerable people in West Yorkshire. Access to good legal information for this particular section of society is difficult as there is no public funding assistance for areas of law such as making a will or power of attorney, or taking advice on planning for and paying for care. These areas have now become very specialist so we encourage clients to use resources such as the Solicitors for the Elderly website to locate expert practitioners in their locality.
The Law Society has begun a campaign entitled "Your Solicitor - Qualified to Answer" to highlight the importance of seeking advice from a properly qualified professional such as a Solicitor or Legal Executive. Legal Executives are qualified lawyers who are regulated by the Institute of Legal Executives. With increasing amounts of alternative legal services available on the open market such as will writing services, it is important for clients to be able to recognise when a lawyer is qualified and regulated to give comprehensive legal advice.
During the talks that we have been giving, we talk about making a will, the basic points of the Mental Capacity Act 2005, what a Power of Attorney is, what Deputyship is and other important points to consider.
A summary of the information that we present to local community groups is as follows:
- A valid will provides the opportunity to protect assets on death and ensure that they pass in accordance with the your wishes to offer peace of mind to you and your family.
- A will appoints up to 4 people to act as your Executors and these are the people that are responsible for the administration of your estate after your death.
- You can appoint testamentary guardians for your children in your will.
- You can leave specific gifts of personal effects of cash sums to people or charities.
- You can leave the residue of your estate to one or more named beneficiaries and you can provide for what will happen if any of those beneficiaries should die before you do.
- You can make provision for your pets.
- You can state your funeral wishes.
- You can incorporate Inheritance Tax planning measures in your will.
Why choose a law firm?
- We offer bespoke advice to clients. By talking face to face, we will identify and advise on all matters relevant to our client rather than draft a document in the basis of a completed questionnaire.
- We are qualified lawyers and are subject to compulsory regulation.
- We will attend clients at home, in a care environment or in hospital. We will attend wherever possible in an emergency and can draft wills on the spot if required.
- Wills can be challenged or declared invalid of they are not drafted correctly or if the circumstances surrounding the creation of a will are wrong. In correct execution, problems with witnesses, undue influence over the person making the will, lack of sufficient mental capacity or undisposed of parts of your estate are all common problems that can arise. Caution should be taken if you wish to draft your own will at home.
Mental Capacity Act 2005: The Law today
- The Act provides a statutory framework to empower and protect people over 16 who are not able to make their own decisions.
- The Act covers decisions about
- - a person's property and affairs
- - healthcare treatment
- - where the person lives
- - everyday decisions about personal care where the person lacks capacity to make those decisions themselves.
- A person may be unable to make a decision because of impairment to their judgement, whether temporary or permanent.
- This could be because of an illness or because of the circumstances that they find themselves in when making a decision.
The Key Principles of the Mental Capacity Act 2005
There are 5 key principles:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
- A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
- Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
- Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive
Assessing the Ability to Make a Decision
- A person is able to make a decision for himself if he or she is able-
- to understand the information relevant to the decision
- to retain that information for an appropriate length of time
- to use that information as part of the process of making the decision
- to communicate his or her decision (whether by talking, using sign language or any other means).
Power of Attorney
- Under S.10 of the Powers of Attorney Act 1971 an individual (the Donor) can give power to an individual or individuals (his Attorneys) to deal with their financial affairs.
- It is a simple and cost effective document to prepare.
- Gives a wide power over all property and affairs.
- The power ends on any future mental incapacity of the Donor.
Lasting Power of Attorney
- A separate Lasting Power of Attorney (LPA) can be made for Health & Welfare decisions and for Property and Affairs decisions.
- The Donor must have sufficient mental capacity to create an LPA.
- The Donor appoints up to 4 Attorneys to deal with either welfare or financial decisions on their behalf.
- Guidance, restrictions and conditions can be added.
- An LPA lasts beyond any mental incapacity of the Donor.
- A certificate Provider is required which can incur a fee
- An LPA needs to be registered with the Office of the Public Guardian before it can be used.
- An LPA is preferable to a Deputyship application as the Donor chooses who is to act on their behalf and more than one person can be appointed.
- There are no ongoing fees from the OPG (but there may be legal fees if a professional Attorney is appointed).
Deputyship & the Court of Protection
- A Deputy is appointed by the Court of Protection to manage the property and affairs or personal welfare of someone who lacks capacity to make certain decisions for themselves (known as the Patient).
- A personal welfare Deputy will only be appointed if the Patient needs serious and ongoing decisions to be made about their health and welfare.
- The Court of Protection can provide restrictions on the Deputy's powers and will supervise them in their role.
- The procedure for the appointment of a Deputy involves an application to the Court of Protection.
- An application can take up to 6 months.
- Notice of the application is given to the Patient and at least 3 relatives.
- The Court fees for an application are currently:
- - £400 to deal with an application
- - £100 on the appointment of a Deputy.
- - Supervision fees £125 - £800 pa
- - Application for a decision £400 (Form COP9)
- An annual report must be filed
- A security bond must to be put in place at an additional cost determined by the level of the Patient's assets.
- Legal fees for assisting with a Deputyship application are either fixed by the Court, or the Supreme Court Costs Office will assess the work done in relation to an application and will advise what the fees should be.
- At Clarion, we can handle contentious Deputyship matters with the support of our Dispute Resolution Department.
- The Partner in charge of the Private Client Department at Clarion is a Panel Deputy.
Jointly owned property: Joint Tenants or Tenants in Common.
- Joint Tenants: the property will pass to the surviving joint owner on the first death.
- Tenants in Common - each party owns their share which can pass in accordance with their Will on death.
- It is possible to sever the joint tenancy by one party serving a notice on the other joint owner so that the property can be held as Tenants in Common.
- Allows spouses to plan for future care costs
- Unfortunately financial abuse of the elderly and vulnerable is a common occurrence.
- Spot the signs:
- - Is someone continually speaking up for a person to the extent that they are interfering?
- - Is the person nervous or unable to talk freely in the presence of a particular person?
- - Have the person's finances depleted quickly and/or without explanation?
- - Is somebody exerting undue influence over your client?
- - Look out for cash gifts or sale of assets at undervalue.
- Take action
- - Contact a local Advocacy service for elderly or vulnerable people, for example Age UK;
- - Refer the person to an independent advisor:
- An IMCA
- A qualified lawyer and member of Solicitors for the Elderly.
- - Notify the Police.
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