Associated Legal Aspects
1) Lasting Power of Attorney
If you and or other members of your family want to look after the financial affairs of your relative, and the relative is able to give their consent, the best and most effective way to do this is by means of a Lasting Power of Attorney.
This is a legal process whereby the relative themselves (acting as the donor); gives permission for one or more people to act and make decisions about their finances (becoming the attorneys) on their behalf.
The given authority can be limited to one or two specific items or it can be all encompassing, but the whole process can only be established if the donor has full mental capacity.
If a person does not have close family members to appoint, it is possible that a solicitor and or family friend could be nominated instead. It may be a wise decision for everyone regardless of age and health to establish an Enduring Power of Attorney as soon as possible.
There are two parts to a Lasting Power of Attorney:
Property & Financial Affairs, this is similar to the old-style EPA (pre dating 1st October) this can be used both before and/or after loss of mental capacity (depending on the donors wishes). But unlike the old system the LPA must be registered with the Public Guardian before it can be used (regardless of capacity).
Personal Welfare, this includes making provisions for the giving or refusing consent to medical treatment/intervention in circumstances where the donor can no longer make such a decision. It is important to note that the welfare LPA can only be used after the donor has lost mental capacity.
2) Court of Protection (Public Guardianship Office)
A Lasting Power of Attorney can only be drawn up if the donor has sufficient mental capacity, meaning that if your relative has already lost this ability and can no longer make reasoned decisions on their own, then you will need to involve the Court of Protection.
A representative of the person (relative or solicitor) will need to apply for a "Receivership Order"; the poorly person will become a "Ward of Court" and the representative the Receiver.
Whilst the "Receiver" can implement certain transactions on behalf of the person, the Court of Protection need to give their permission before any financial transactions are completed. Unlike establishing a Lasting or Enduring Power of Attorney, obtaining the Courts permission to act as a Receiver can be a very involved process, often taking several months and costing significant amounts of money.
3) Enduring Power of Attorney
Up until 30th September 2007, it was possible for people to draw up an Enduring Power of Attorney; these documents are still perfectly legal, and it will be possible for named attorneys to use the powers of these existing documents, although the following points should be observed carefully:
- No new Enduring Powers of Attorney can be made.
- Amendments cannot be made to existing documents.
- Should an attorney pre-decease the donor, a new Lasting Power of Attorney may need to be drawn up, if the donor has already lost capacity then they may have to become a Ward of Court.
- It isn’t necessary to register the Enduring Power of Attorney before it can become effective, providing the donor still has mental capacity.
- The document must be registered with the Courts at the onset of mental incapacity.
- An Enduring Power of Attorney doesn’t relate to the social/medical welfare of the donor.
4) Making or Revising a Will.
It is our belief that every adult should consider making a will.
Having an up to date will is the only way a person can be sure that their estate (i.e. hard earned money) is distributed in accordance with their wishes.
If a will is not in place, or incorrectly drawn up, then the fairly strict rules of intestacy will apply to the estate, these can be considered harsh and could be completely at odds with a person’s real wishes.
The Law of Intestacy
Should a person die without making a will then the laws of intestacy will apply, these rules are not as straightforward as people think, and the following should help with the administration.
- Only the spouse survives - they take the full estate
- Spouse and issue (children) survive - the spouse takes the statutory amount of £250,000 plus half of the income arising from the residual amount and all the personal chattels (for deaths occurring prior to February 2009 this figure was £125,000).
- Spouse and relatives survive (parents, brothers etc) but no issue - the spouse takes £450,000 absolutely plus half of the income arising from the residual amount and all the chattels. (for deaths prior to February 2009 this figure was £200,000).
- No spouse survives - the whole estate goes to:
- Children, but if none
- Grandchildren, but if none
- Parents, but if none
- Brothers and sisters (whole blood); but if none etc
- Eventually, if there are no relatives the crown takes the estate
Should a couple die together, then the youngest person will be deemed to have died last, and the intestacy laws will follow their blood-line alone.
5) Finding a Solicitor
It is possible for people to draw up their own Lasting Powers of Attorney and or Wills. However, as these documents are vitally important we would advise you very strongly not to do this.
It is essential that solicitors draw up any important legal documents; they are aware of the potential pitfalls and can ensure that no mistakes are made with these documents.
Symponia recognises that the needs of the elderly can often be complex and demanding, and as such we are aware of a national group of solicitors who pride themselves on their ability to treat the elderly with the utmost respect and care.
The group is not surprisingly known as "Solicitors for the Elderly" and should you not have your own solicitor you can locate your nearest one by either; telephoning them on 01422 822737 or reaching their web site at www.solicitorsfortheelderly.com.
As mentioned many of our members have already established professional relationships with local practices, and to help you still further we are pleased to share this information with you, "Symponia Known Solicitors".