Ashley Mirfin

Lasting Powers of Attorney – refunds available on Registration Fees

If you Registered (or had Registered on your behalf) a Lasting Power of Attorney with the Office of the Public Guardian (OPG) between the dates of 1st April 2013 and 31st March 2017 you may have been charged more than necessary and be entitled to a refund.

The Ministry of Justice, which sets OPG’s fees, reduced the application fee with effect from 1 April 2017, and has now launched a refund scheme for those who paid a higher fee in the qualifying period. The scheme will be run by OPG.

You can make a quick and simple claim online.

Go to https://www.gov.uk/government/news/power-of-attorney-fee-refund-scheme-launched for more information and to make your claim.

 

Lasting Powers of Attorney – Making life easier?

The Financial Conduct Authority (FCA) recently published a paper examining the ease by which the affairs of the old and vulnerable could be managed by their families. Amongst other topics the paper discussed Lasting Powers of Attorney and how their implementation might be made easier.

It is unfortunate that LPAs in their present form are almost impossible to complete properly without professional advice. Of the 100’s of LPAs we have made and registered for clients since October 2007 I could count on one hand the number of clients who have fully understood what they were doing and its effect without explanation and the benefit of such advice.

There is also the opportunity for fraud on a vulnerable person if the documents are not properly completed and certified by someone competent to do so.

The documents rely on the witnessed signature of the person making the power as their consent for their Attorneys to act on their behalf.

Without the intervention of an independent professional as Certificate Provider and witness there is no certainty at all that the LPA represents the true wishes of the person giving the power or that the person has the capacity to give that consent!

We are concerned that there is no simple solution to making LPA’s and to take away the checks and balances would provide an even greater opportunity for fraud.

Contact us for help and advice.

Alan Shearer’s documentary ‘Football, Dementia and Me’

Many of you will have seen Alan Shearer’s documentary ‘Football, Dementia and Me’ on BBC One this Sunday.  Dementia is seemingly prevalent in retired footballers, so much so that studies are being conducted into whether there is any link between heading a football and dementia in later life. Alan Shearer, who over the course of his career scored 46 goals via headers, took part in one such study as part of his program.

It is unfortunately a fact that 1 in 14 of the over 65’s in the UK today suffer from dementia, this represents 1 in 79 of the UK population as a whole.

Seeing the effect that dementia can have on your loved ones may have spurred you into thinking about what would happen if you were to lose capacity and what you could do to prepare for the possibility.

If you were to lose capacity to make decisions for yourself who would make decisions for you? Who would manage your bills and other finances? If you needed medical treatment who would consent to this on your behalf?

If you are married you may think your spouse will be able to manage your financial affairs and make decisions about your health and personal welfare but this is not the case unless they are formally appointed as your Attorney or as a Deputy.

A Lasting Power of Attorney (LPA) is a legal document that grants a person or persons the power to make decisions on your behalf. Having an LPA in place will save your family a lot of time, distress and money in the event of your loss of capacity.

There are two types of LPA, both of which must be made when you still have capacity. The first type is the Property and Affairs LPA which allows your chosen attorneys to make decisions about your financial affairs and property. The second type of LPA is the Health and Welfare LPA. This covers decisions about your personal welfare and health and can only come into effect after you, the donor, has lost capacity.

Under both types of LPA you choose who to appoint as your Attorneys. This could be your spouse or partner, your children, or anyone else you trust to look after your best interests.

What if you don’t have an LPA? If you lose capacity without any LPA in place, your family or friends would need to apply to the Court of Protection for a Deputyship Order. This takes significantly longer than registering an LPA. Applications to become a Deputy are handled by the Court and the process is very expensive.  The application fee alone is £400 (at time of writing) and there will be significant ongoing costs.

Contact us for advice and to learn more about making Lasting Powers of Attorney.

Based on an article published by the Society of Will Writers.

Will in unsent Text upheld in Australia

A court in Queensland Australia recently ruled that an unsent text found in the drafts folder of a deceased man’s phone the day after his suicide was a valid Will. This was despite opposition from the deceased’s excluded widow and son who stood to benefit under the Australian intestacy rules.

In the text itself the deceased left ‘all that I have’ to his brother David, informally referred to as ‘Dave Nic’, and his nephew. It also included instructions to put his ashes in the back garden and details of how to access his bank account. It was signed off with the words ‘My will’ and a smiley face.

For a Will to be valid in Queensland it must be in writing, dated and signed by the testator and two witnesses. The requirements for formality are very similar to those applying in this country. However under Australian laws the court may dispense with the formality requirements. They can declare a Will written in a ‘non-traditional’ form valid if satisfied that the testator (the person making the Will) intended for the document to be their Will.

Justice Susan Brown held that the wording of the text message showed that the deceased intended it to be his Will.

Even though he committed suicide the Court decided that there was no evidence that the testator lacked mental capacity when he made the Will. The court accepted there was no evidence of any other Will or contrary wishes. The court was satisfied that the text message was intended to be the deceased’s final draft of his Will and that he intended this to be found.

This is topical in the UK since the Law Commission is presently consulting on the recognition of Wills made and signed in an electronic format. Further proposals suggest allowing the courts to uphold Wills made informally to allow emails, notes and even texts to be used in place of a written Will.

Seems like dangerous territory to me!

(Based on an article published by the Society of Will Writers)

Lasting Powers of Attorney (LPAs) – are they a valuable investment or open to abuse?

Recent comments in the press attributed to Denzil Lush the former Senior Judge at the Court of Protection who retired last year suggest that as many as one in eight of people making LPAs have their assets stolen by the family members they appoint as their Attorneys.

He recommends that instead of making LPAs people should do nothing. In these circumstances should they lose mental capacity a professional Deputy will have to be appointed by the Court to look after their affairs. This seems to us counter intuitive.

With professional advice for the person making a LPA and for their appointed family Attorneys, and including the Court fees the total cost of making and registering a LPA is less than £270. The cost of appointing a Deputy on the other hand is at least £2,000 with an ongoing cost of at least £500 per annum.

This is a nonsense!

Almost all of our Clients trust their children to make the right decisions for them if, and when, they are unable to take decisions themselves. Where this is not the case or there are no children we can appoint a professional Attorney, a Trust Corporation for example, who can deal with the Donor’s (the person making the LPA) financial affairs as and when necessary for a modest fee.

In summary, LPAs are an essential tool to enable your financial and health & welfare matters to be dealt with if, and when, you are unable to deal with these matters yourself. Making LPAs and the appointment of family Attorneys is by far and away the best solution.  Contact us if you have questions about LPAs.

Beware not all those offering to write your Will are what they seem!

I don’t want to be morbid but when you make a Will, providing it’s valid, it will speak from your death. Too late for you to do anything about it.

If you or the person writing your Will gets it wrong and you die it’s too late. If the Will fails the Rules of Intestacy (as though you had died without making a Will) will apply or your loved ones will be left with an expensive fix. Potentially thousands of pounds from your estate to put things right.

If you employ someone to write your Will, face to face, by filling in a form, on the phone or online make sure they are qualified and have professional indemnity insurance (a minimum of two million pounds). Ask to see evidence of their qualifications and a Certificate of Insurance. Then if things go wrong your family will have somewhere to seek recompense.

Generally those qualified to write Wills are Solicitors (registered with the Solicitors Regulation Authority), Legal Executives members of CILEx, Members of the Society of Trusts and Estate Practitioners (STEP) and professional Will Writers members of the Society of Will Writers (SWW) or the Institute of Professional Willwriters (IPW).

You have been warned. Contact us for advice.

Is it possible to change someone’s Will after they have died?

Why would anyone want to do this, surely a Last Will and Testament is just that?

There are many reasons, here are a few –

  • family circumstances may have changed since the Will was written
  • the Will is invalid or fails when submitted for probate (when the deceased person would be deemed to have died intestate (i. e. without a Will))
  • the Will is incorrectly or incompletely administered
  • activities called for in the Will have not been enacted
  • the beneficiaries simply want to pass their due inheritance directly someone else.

The answer is the Will (or intestacy if there was no valid Will) can be varied by the agreement of all the parties within the two years following the death.   The parties would need to execute a Deed (or Instrument) of Variation.

But remember time is of the essence.   Contact us for more information.

Prepaid Funeral Plans – How do you select a plan provider?

Here are some things to consider before deciding on your Funeral Plan:

Low prices versus:

– A cast-iron guarantee of security

– A properly regulated supplier; and

– THE PLAN WHICH IS THE BEST FOR YOU?

Tips –

  1. Check to see if the funeral director is appointed from day one and GUARANTEES to carry out the funeral and there will NEVER be more to pay for his services however far into the future they are required and how the plan combats inflation.
  2.  Is the firm regulated by The Funeral Planning Authority (FPA)? Apart from maintaining standards, FPA membership means that if a member firm gets into trouble, the other members will step in to deal with the funerals.
  3. If the plan is Trust based DEMAND to see the latest trust accounts. Ensure the assets exceed the liabilities (this is compulsory for FPA members).

Take advice, check out all the differences and decide which is the BEST overall plan for you.

There are some very good funeral plan providers – we think the plan we offer is provided by one of them – the plans are called “GUARANTEED” for a reason.

Contact us for more information.

Testamentary Freedom

In English law you are free in your Will to leave your assets to whomsoever you like subject to providing for those who are dependent on you, normally your partner and minor children. However this principle has been challenged in court. The case known as Ilott vs Mitson that began in 2007 has recently been adjudicated on by the Supreme Court, the highest court in the land.

Mrs Jackson died leaving her £486,000 estate to the Blue Cross, RSPB and RSPCA charities.  Her daughter, Heather Ilott, from whom she was estranged for 26 years brought a claim that she should be entitled to money from her mother’s estate.

In 2007, a County Court ruled that Ilott should receive £50,000 from her deceased mother’s estate. Mrs Ilott appealed and was eventually awarded £163,000 by the Court of Appeal in 2015. The three charities appealed this decision.

After a decade of litigation, the Supreme Court ruled unanimously this month in favour of the three charities, stating that the County Court judge had made the correct decision on the grounds of testamentary freedom in 2007.  It thereby restored his original order awarding Mrs Ilott £50,000.

This case is an important victory for the Charities as it would otherwise have set a precedent for them since they benefit hugely from charitable legacies in Wills.

What would happen to your business if you were to die?

No one wants to think about their own mortality but if you don’t then those you care for may suffer.

Making a Will is important anyway but if you have an interest in a business it’s even more important. Since, in addition to your family’s interests you may have fellow investors or partners interests to consider as well. In the extreme case your fellow shareholders could find your spouse or partner as a shareholder contributing nothing at all to the running or development of the business.

What happens to your business on your death depends on its legal structure:

  1. If you are a sole trader you can gift the business in your Will to whomsoever you wish, it could be to a son or daughter or someone else already working in the business.
  1. If you are in a partnership with others (and there is no partnership agreement in place) the law says that the partnership is dissolved on the death of one of the partners. The liability for your share of any debts and obligations of the partnership will pass to your estate.
  1. If you are a shareholder in a limited company (and there is no shareholder agreement in place) then subject to the Article of Association on your death your shares in the company will pass i) in accordance with your Will if you have left one; or otherwise

i)   in accordance with your Will if you have left one; or otherwise

ii)  in accordance with the rules of intestacy.

In the third case it is essential that the company puts a shareholder’s agreement and insurance in place. This will ensure that shares can be bought back and that the business can continue after the death of a shareholder.

Contact us for more information.

How can we help?

Call us today on 01908 866541
or send us an email