Lasting Power of Attorney - Health and Welfare

Lasting Power of Attorney – Health and Welfare

Do you have an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney Property and Financial Affairs (LPAPFA)? What about a Lasting Power of Attorney Health and Welfare (LPAH&W)?

EPAs only cover decisions regarding your property and financial affairs and not decisions regarding your health and welfare. Since the introduction of LPAs in 2007 it has been possible to appoint attorneys to make decisions regarding both your property and financial affairs and your health and welfare and yet many more LPAPFAs have been registered than LPAH&Ws. However, the number of LPAH&Ws being registered is increasing as more people begin to recognise the importance of them.

How do LPAH&Ws work?

As with LPAPFAs, LPAH&Ws enable you to appoint a person (or people) of your choice as your attorney(s) to make decisions, with legal authority, on your behalf. Unlike LPAPFAs, however, LPAH&Ws can only ever be used by your attorney(s) to make a decision on your behalf if you lack the mental capacity to make that decision yourself – if you have the mental capacity to make a decision, your attorney(s) cannot make it for you.

What kind of decisions do LPAH&Ws cover?

Broadly speaking, LPAH&Ws cover ‘personal’ decisions. Your attorney will make decisions about things like:

  • Daily routine; for example washing dressing and eating
  • Medical care
  • Where you, the donor (the person giving the power), lives

LPAH&Ws can also cover life sustaining treatment decisions.

Won’t my family be able to make these decisions for me without a LPAH&W?

Whilst your family are likely to be consulted on such issues, they won’t have the legal authority to make decisions on your behalf as your attorney(s) would. For example, you might not even be able to access your spouse’s / partner’s medical records without a LPAH&W.

Only your next of kin would be consulted about resuscitation and life sustaining treatment decisions and this may not be the person you want/expect it to be. Further, your next of kin and other family and friends may not be aware of your wishes or there may be disagreement between them.

What are the advantages of LPAH&Ws?

LPAH&Ws give you the peace of mind that you have given a person (or people) you trust, and who are aware of your wishes, the legal authority to make decisions on your behalf should you lack the mental capacity to make such decisions yourself. LPAH&Ws will also give your next of kin, family and friends peace of mind that they know what your wishes are and that these can be expressed on your behalf.

What if I don’t have a LPAH&W?

If you don’t have a LPAH&W in place and a decision needs to be made on your behalf because you lack the mental capacity to make it, Social Services and/or the Court of Protection may need to become involved. An application to the Court of Protection can be lengthy, costly and stressful at what would be an already difficult time and could result in a decision which is not in line with your wishes.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or get in touch with us via our enquiry form.

DIY Disaster

As estate planning practitioners we obviously meet a lot of people who need a Will.  Some have never had a Will at all, some have made a Will a long time ago and it is in dire need of updating and some people have attempted to write their own Will, with varying levels of success, and want a second opinion.  Whatever the case may be, one thing we are commonly asked is “Why do we need to use you, when we can buy a DIY Will writing pack from WH Smith and write our own Will?”

The simple answer is, when you feel ill you don’t diagnose yourself, you go and see a doctor.  In other words, there’s nothing like seeking professional help when important decisions need to be made and the expertise that specialist Will writers like us can offer you is not something you will find anywhere in a DIY Will pack.

What can go wrong?

An example of the importance of seeking professional advice is the case of a married couple who wrote “DIY” Wills in 2000.  They were told by a friend to make sure the Wills were “mutual”.  They didn’t actually know what “mutual” Wills were, but thought it sounded like the right thing to do.  The couple duly made “mutual” Wills in which they left everything to one another on the death of the first of them, then the majority of their estate went to their two daughters, with some smaller gifts to other beneficiaries.

In 2001 the man of the couple passed away, leaving his entire estate to his wife.  Over the next few years the woman gave significant sums of money to each of her daughters to help them with loan repayments, mortgages and so they could clear other debts.

In 2009 the woman made a decision that, as her daughters had pretty much received their respective inheritances during their lifetime, she would make a new Will leaving the majority of her estate directly to the three grandchildren that had been born since her late husband had passed away, with a token gift to her daughters.

When the woman died in 2014 she did so in the knowledge that her 2009 Will would benefit her grandchildren, having already resolved the financial problems that each of her daughters had got themselves in to during her lifetime.  However, having gone through their mother’s personal effects following her death, the daughters found not only her 2009 Will which made only a small gift to them both, but also the “mutual” Will she had made in 2000.  They saw that they were due to benefit far more from the “mutual” Will and sought professional advice as to what a “mutual” Will was.  They learned that a “mutual” Will is made by two people who agree not to update their Will without the knowledge of the other person.  Crucially when one of the people dies, the other cannot change their Will.

When the case went before a judge, he found that the 2000 “mutual” Will was still valid and that the Will written in 2009 should therefore be disregarded.  The daughters had won and received the vast majority of their late mother’s estate under the terms of the 2000 “mutual” Will.

What should have happened?

Our unerring recommendation is to seek professional advice before you make a Will.  It is not the case that “mutual” Wills are a bad thing, but they generally only work in very specific circumstances.  We would certainly have advised against the couple in our example making “mutual” Wills and this would have avoided the issues that were caused by them having done so.  Had the couple written Wills more appropriate to their situation, there would have been no problem with the woman writing a new Will following her husband’s death and it would not have been vulnerable to a challenge from her daughters in the same way that her “mutual” Will was.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or get in touch with us via our enquiry form.

Guardian

Guardians

When people with minor (aged under eighteen) children are asked about writing a Will they often miss the main reason of doing so. The responses they most commonly give are usually along the lines of “I don’t own enough to need a Will.” or “I’m not going to die any time soon.” This approach is far from surprising when you consider that 57% of parents haven’t made a Will.

Of course, what most people with minor children fail to realise is that the main reason for making a Will is not to direct how their assets are distributed, but to ensure that they nominate the individuals whom they wish to bring up their minor children; the guardians. A guardian is someone who takes on parental responsibility over a child when the child’s parents die before the child reaches the age of 18. If both parents of such a child die without leaving a Will that appoints a guardian, it is down to the court to appoint the guardian and this may not necessarily be who the parents would have intended the guardian to be. So the person left to make fundamental decisions about a child’s upbringing, how they are educated, what religion they observe, whether they are raised as a vegetarian, etc. could end up being the last person the child’s parents actually wanted. It is no coincidence that when deciding upon appointing guardians, people often deliberate longer than they do when deciding who receives their assets. It is not a decision to be made lightly or, indeed, without having discussed it with the potential guardians first.

It is also possible to put measures in place within a Will to assist guardians to best carry out their role with the minimum of hindrance. Some of the most common methods are as follows:

  • Assets left in trust for the children to inherit at the age of 18 can be made available to the guardians by the trustees if the intended use of the asset is for either the education, maintenance or welfare of the children even if they have yet to reach the age of 18
  • A cash legacy in favour of the guardian, on the condition that they actually take on the role of course, can help to ensure that the guardian is never left out of pocket while carrying out the duty of bringing up someone else’s children
  • Provision can be provided for funds to be made available to the guardian to buy a bigger house in which to raise the children, with the loan secured against the property so as not to financially burden the guardian

Parents can also write a letter of wishes to give guidance to the guardians on how they would like to see any funds used and how they would like their children to be raised. Whilst such a letter would not be in any way binding, parents still hope to ensure that their children are cared for whatever the circumstances by laying out as many guidelines as possible. It is also sensible to appoint reserved guardians who can step in should the first-choice guardians be either unwilling or unable to take on the role when the time comes.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or click here.

true story

A true story

One of our Consultants has asked us to share this true story. The names of those involved have been changed to protect identities.

“I am an estate planning practitioner. It is my job to assess an individual’s personal circumstances and advise them on how best to go about putting their affairs in order so that things go as smoothly as possible after they die.

From time to time I am asked for advice by friends and family. On one such occasion I was asked by my mother-in-law to give some advice to Mandy, the daughter of my mother-in-law’s neighbour.

Mandy was 20 at the time and she lived with her 18 year-old brother, Scott, in the family home, along with their mother, who had recently been diagnosed with terminal cancer. Mandy and Scott had an older sister, Lorraine, who lived in a council flat with her partner.

Mandy’s mother had no Will and she (Mandy) was becoming increasingly concerned that this would cause problems if her mother died before making one. I advised her that she should encourage her mother to write a Will while she was still well enough to do so. I also advised that it was imperative that any such Will granted Mandy and Scott a right to live in the family home, after their mother’s death, for such a period of time as to allow them to make plans for the future before having to sell the property and split the proceeds of sale between them and Lorraine.

Try as she might, Mandy could not persuade her mother to address the fact that she had no Will. It appeared that she was in denial over her condition and repeatedly told Mandy and Scott that she would get round to writing a Will when it became necessary to do so. Unfortunately her condition deteriorated rapidly and she died intestate.

Less than a fortnight after their mother’s death, Mandy and Scott received a letter from a firm of solicitors advising them that their sister Lorraine had appointed them to administer the estate of their late mother and that the property would have to be sold. Their mother’s funeral hadn’t even taken place yet Mandy and Scott were already facing up to the prospect of being turfed out of their home before they had even had an opportunity to grieve. Lorraine wanted her share of her late mother’s estate and had no desire to wait for it any longer than she felt she needed to.

It has been several months since I last heard from Mandy. When we last spoke she advised me that the relationship between her and Scott and their sister was at an all-time low and legal action was still ongoing to force Mandy and Scott to leave their home so that it could be sold. Mandy was receiving counselling and was signed off from work indefinitely with stress. Scott’s studies were affected badly and he had all but dropped out of 6th form college.

For the cost of a professionally created and suitably worded Will, this family could have been spared all of the upset, stress and worry that an intestacy caused. Regrettably it is a situation we see regularly. Don’t leave a mess like this behind. Act now, while you are still able.”

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or click here.

The importance of face to face meetings

At Casey & Associates we strive to maintain excellent levels of customer satisfaction. The starting point for this is a friendly face to face meeting in the comfort of your own home. Whilst there are a number of reasons why we prefer to meet in person, one of the more significant reasons is that we want to ensure that no one is influencing you, our client. Sometimes influence or coercion can be very subtle. It is essential that your Will truly reflects your wishes and at Casey & Associates we like to be sure that this is the case.

A recent article in the national press regarding a carer potentially coercing a wealthy pensioner shows how important this is. It is believed that the carer, a distant relative by marriage, not only coerced the gentleman at a time he was believed to lack mental capacity, but also assisted him with the signing of his Will. The now deceased pensioner, a retired banker, had previously made a Will in 2008 in which he appointed his three siblings as executors. He is thought to have had a close relationship with his siblings, who were each due to received 26% of his estate. His niece, nephew and a close friend were also due to benefit from his 2008 Will.

It is alleged that his carer took control of his life and excluded his siblings from further involvement with him. Two days before he died in 2014, a new Will was created. Under this Will, 40% of the estate was to go to the carer and her children.

The 2014 Will has since been challenged. The judge ruled in favour of the 2008 Will.

As professionals, regulated by the Society of Will Writers, we ensure that each person we meet has the testamentary capacity to create a Will and we carry out rigorous checks to make sure our client is not being influenced or coerced. The best way to do this is during a face to face meeting.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or click here.

filing will

If your Will cannot be found when you pass away you do not have a Will

It is only three weeks since we posted an article about the importance of storing your Will securely. An incident occurred this week which highlights the need for professional storage.

The names of our clients have been changed to protect their identity. Mr & Mrs Smith became clients a number of years ago. It was the second marriage for each of them. Mr Smith had three children from his first marriage. Mrs Smith had two children from her first marriage. When our consultant visited Mr & Mrs Smith they gave us instructions that “everything was to go to the other when the first died and then when the second died everything was to be split equally between the five children”. Mrs Smith had brought more funds to the second marriage than Mr Smith and our Consultant made a file note that Mr & Mrs Smith advised him that the children of Mrs Smith might not be totally happy with the instructions that everything should be split equally between the five children. Our Consultant recommended that Mr & Mrs Smith take up our storage service so that nothing could happen to the Wills. However, our clients decided to store the Wills themselves.

Mr Smith died in 2016 and all assets went to Mrs Smith according to the Will of Mr Smith.

We received a telephone call from one of Mr Smith’s children last week. Mrs Smith had just died and the children of Mrs Smith had advised the children of Mr Smith that no Will for Mrs Smith could be found. Because no Will for Mrs Smith can be found she is deemed to have died “interstate”. Under the laws of intestacy all the assets of Mrs Smith will go to her children. The children of Mr Smith will receive nothing. If the Will of Mrs Smith had been safely stored with us the estate would have been distributed in the way that Mr & Mrs Smith had wanted.

The children of Mr Smith have lost out by some £300,000. This would not have happened if Mr & Mrs Smith had decided to store their Wills with us.

PLEASE consider storing your Wills safely and securely with Casey & Associates.

If you would like to meet with one of our Consultants to discuss this article or any other Estate Planning matter please telephone 01732 868190 or click here.

funeral

Funeral wishes

When a loved one passes away, funeral arrangements are often discussed and arranged before the estate administration process has been sorted. As a result, cash flow can be problematic. However, as most banks are aware of this problem, invoices from the funeral directors can usually be paid directly from the deceased’s estate.

Whilst this provides a solution to the funeral itself, the cost of any wake is not automatically deducted from the deceased’s estate. Whilst this may be resolved if all beneficiaries agree to the cost of the wake being removed from the estate, disputes can arise preventing this from being the case.

There have been cases when families have disagreed regarding the wake for their loved one. In one case, half of a family wanted to put on a lavish, expensive wake however the other half disagreed owing to the fact the deceased had told them that she wanted a simple low cost wake. Without the agreement of all the beneficiaries, the money was not able to be deducted from the estate and therefore the cost of the wake was born by the family themselves.

To avoid this, it is recommended to make your funeral wishes clear in your Will. Whilst these are just wishes and not legally binding, it does give your loved ones an indication of what you would have wanted. As well as this, we recommend having the discussion with your family as well as leaving a letter stored with, but not attached to, your Will.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topics please telephone 01732 868190 or click here.

owning property abroad

A possible consequence of owning property abroad

If you live (are domiciled) in England/Wales you have testamentary freedom. This means that you can create a Will leaving what you want to whom you want. There are many countries where this is not the case. In such countries there is partial or total “forced heirship”. Forced heirship means that you must provide for certain (categories of) people.

If you live in England/Wales and you own property (i.e. buildings/land) in a forced heirship country then there can be some unintended consequences waiting to catch you out.

If you are married, live in England/Wales, all of your assets are situated in England/Wales and you “leave everything to each other”, when the first of you dies there is no inheritance tax to pay because spouses can pass assets between each other in life and by Will without incurring any inheritance tax liability. Inheritance tax may well be due when the second of a married couple dies. But if you own property in a “forced heirship” country you may be “forced” by the laws of that country to pass assets to children. If you live in England/Wales then HMRC will look at the value of your worldwide estate when you pass away. That means that if you own property/land in a country with forced heirship rules and sufficient value of assets pass to your children because of the “forced heirship” laws of that country you may find that you have to pay Inheritance Tax in the UK when the first of a married couple dies.

If you live (are domiciled) in England and Wales and own buildings/land in a country that has “forced heirship” laws of succession then you may need specialist advice.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topics please telephone 01732 868190 or click here.

secure will

The importance of storing your Will securely

If you want your wishes to be adhered to when you pass away, then you should record your wishes in a Last Will and Testament. A legally valid, attested (signed in front of two witnesses) Will means that your estate should pass to those whom you decide to receive it and your estate will not be distributed according to the Laws of Intestacy.

However, simply creating a Will is not always enough. Your Will needs to be stored securely so that it can be located and used when you pass away.

At Casey & Associates we offer a secure storage facility and can store your Will on your behalf until either you, or your executors, request for it to be released. Our storage facility is fire resistant giving you extra peace of mind. If you are storing your Wills at home, a similar storage facility should be used. You should store your Wills where they cannot get damaged, either by fire or water.

As well as ensuring your Will is stored securely, it is also extremely important to inform your executors or close relatives and friends where your Will is being stored; whether this is in a safe location at home, with a bank, or with us. If your Will cannot be located after you pass away, you will have deemed to have died intestate and your wishes may not be adhered to.

Furthermore, if you wish to leave letters advising your executors of any special requests for any chattels such as furniture or jewellery, as well as any advice on funeral wishes, these should also be stored with, but not attached to, your Will.

If you would like more information regarding our storage service or would like to meet with one of our Consultants to discuss any Estate Planning topic please telephone 01732 868190 or click here.

legal law will

Making sure your Will is legal

To be able to create a Will, you must be over the age of 18 and have the necessary mental capacity.

If you have limited eye sight, are registered blind, disabled, unable to sign or hard of hearing you can still make a Will. Our Consultants can offer guidance on how to create a valid Will.

Instructions for a Will can only come from the person creating the Will; it must be your choice to create a Will and your instructions should reflect your wishes. Our consultants will not accept instructions from a third party, nor will they accept instructions when they believe there is coercion.

A Will should be in writing to be deemed legal and valid. Furthermore, it must be signed in the presence of two witnesses. The two witnesses must then also sign the Will in order for it to be valid. For more guidance on how to correctly attest your Will, please do not hesitate to contact us.

It is important that rules are followed when creating a Will; HM Courts and Tribunals Services (HMCTS), the Government Department that issues Grants of Probate, have stringent checking procedures regarding the attestation of Wills. An incorrectly attested Will may excite the suspicion of HMCTS. This could delay the Grant of Probate application and therefore, the whole of the estate administration process.

It is also important not to write on your Will, including any amendments you wish to make. A written note to add or remove a beneficiary or executor may cause part or all of your Will to be rejected by the Probate Court. In such cases some or all of your estate may be distributed via the laws of intestacy. Furthermore, if a page is or pages are either attached to or detached from your Will, then this may also excite suspicion and may lead to problems during estate administration. Should you wish to amend your existing Will, please do not hesitate to contact us.

We offer a free Will checking service for existing clients. All you need to do is send your Will to us – we recommend that you use Royal Mail Special Delivery.

If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topics please telephone 01732 868190 or click here.