News

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.

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