Tag Archives: Lasting Power of Attorney

Lasting Powers of Attorney – practical issues – Health and Welfare

1 Mar

Lasting Powers of Attorney – some practical issues

 

There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the health and welfare one works.

 

One of the key features of the LPA for health and welfare is that it cannot be used unless the person has lost capacity to make their own decisions.  And as capacity is time and decision specific, for each issue that arises, the carer will need to check on whether that person has capacity to make a decision.  This does not necessarily need a formal assessment of capacity, no-one wants that each time a cup of tea is given!  However it might mean asking the question about how much milk and/or sugar goes into the tea and assessing the answer.

 

Each day, we make thousands of health and welfare decisions, how much butter is on our toast and how big a gulp of tea we take in the morning, each one of those is a separate decision.  And for most of those decisions, we might not be that bothered if the carer makes that decision.  But we all have our personal preference on for example how hot our tea is, how much milk and sugar there is, so if the care communicates that, it is helpful to those providing care.  And as long as someone is dressed it might not matter if their t-shirt is red or blue.

 

So if the carer is going to make lots of these decision, why create the LPA?  Because it resolves the big issues and the issues where there is a dispute!

 

Lots of people say that they want to stay at home for as long as possible, but according to the House of Lords post legislative scrutiny of the Mental Capacity Act, Social Services are risk averse and healthcare professionals are paternalistic.  And in either case, they are not necessarily empowering the individual to make their own decision, including the “unwise choice”, which is a principle of the Act!

 

So having an LPA in place will mean that the attorney can insist that the person is cared for in their own home or discharged from hospital.  It will mean that the care that is provided to them is done in accordance to the attorney’s instructions, as long as it’s possible to provide that care.  This is not an entitlement to something that is not clinically appropriate.

 

If you have any questions about LPAs, please contact me.

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Lasting Powers of attorney – practical issues – Property and Financial Affairs

15 Feb

Lasting Powers of Attorney – some practical issues

 

There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the financial one works.

 

It can work, if you are well, but have a physical impairment and cannot get to the bank to deal with your financial affairs, at this time, your attorneys should act on your instructions only.  They are effectively doing your running around.

 

If and when you ever lose capacity, your attorney will act for you, but they make your decisions, so it is important that you trust them.

 

Unless restricted, the LPA will cover everything you own, which includes all those lovely sentimental things that you own, as well as your cash and house.  Make sure your attorney knows your intentions for all of it, the sentimental stuff is where people often row!

 

So what if you don’t have an LPA, well if you can’t get to your money, then unless you’ve made arrangements no-one can, so your bills won’t get paid.  If you live at home, your repairs or new equipment can’t be purchased, which will impair your ability to successfully live at home.  If you are in a care home, then your fees won’t get paid and the home will not want you there.  Often the Local Authority will step in on an interim basis to meet your fees in the short term, but they will want reimbursement and if necessary will take on deputyship themselves (which is like a power of attorney, but granted by the Court of Protection), which is a far more expensive option.

 

So what can your attorney do with your money?  It is meant to be used for your benefit, so making modest gifts probably is for your benefit, if you have always made them, you could appear ungenerous if you stopped giving Christmas and birthday presents.  However the power to make gifts is very limited, it must be “on occasion”, such as birthday, Christmas, wedding etc and it must be reasonable in all the circumstances, including the size of the estate, which means that the attorney cannot give themselves thousands of pounds just because they fancy it! Or at least they shouldn’t, which is why you should trust your attorneys.

 

They can spend the money on you, on your needs, to ensure that you are housed, clothed, fed and cared for.  And beyond these basic needs, depending on how much money you have, they may also buy for you some luxuries that you like, such as a holiday, if you are capable of travel.  Whatever they spend your money on, it should be with you in mind, not just what a generic person like you would want.  Some people love chocolate, others are allergic, so whatever your guilty pleasure is, if you have enough money for it and there is no clinical reason why you can’t have it, your attorney should purchase this for you!

 

If you have any questions about LPAs, please contact me.

Lasting Powers of Attorney

17 Aug

 

Lasting Powers of Attorney

 

Following retired Senior Judge Denzil Lush’s comments regarding Lasting Powers of Attorney (http://www.bbc.co.uk/news/uk-40887323), I thought it worthwhile exploring the situation more.

 

Denzil has said that there are risks associated in appointing someone to look after your affairs, for both financial and health & welfare decisions.  He is right, there are risks, however he has said that there are issues with 1 in 8 Powers of Attorney, which means that in the vast majority of cases, families care for the loved ones with diligence and compassion.  For those unfortunate to be involved in the cases of fraud or careless decision making, it can be devastating, both financially and from the family relations perspective.

 

Denzil has also said that he would not create LPAs and would rely on the Court of Protection to appoint an attorney, if he were to become unable to manage his affairs.  What he did not discuss in his article is the cost of doing do and the time it takes.  Deputyship orders can be done in person, but they are complicated and I often see people who have tried and given up.  The legal costs for a simple application for deputyship is IRO£1,500.00+VAT plus the Court fee of £400 (total around £2,200)* and this does not include the cost of the Bond or the ongoing costs of supervision of the Deputy, which can run to thousands of pounds a year.  The result from the Court will be a supervised order covering the daily management of the donor’s financial affairs, but it is unlikely to include health & welfare decisions, as these are rarely granted.

 

If there is anything that changes in that person’s affairs, then a further order to the Court of Protection might be required for a more complicated matter.  This is likely to involve significant legal fees, including those of the Official Solicitor to represent the donor and can easily be IRO£10,000 and upwards.

 

Lasting Powers of Attorney by contrast, can have restrictions added to them for protection and cost £600+VAT plus the registration fee of £164 (total £884)*.  This cost would cover both financial and health and welfare decisions, so would cover far more than the Deputyship order in all likelihood.

 

At Nash & Co Solicitors, if the LPAs are done for people who have capacity and are not expecting to use them for a while, we will hold onto the original and release it or certified copies of it at the direct request of the donor or with evidence of loss of capacity, if this is the donor’s original instructions, to add an additional layer of protection.

 

There are risks to creating Powers of Attorney and Deputy’s can commit fraud too, although hopefully the Office of the Public Guardian would realise, but this can take a while.

 

Lasting Powers of Attorney are a great tool to allow someone to be taken care of, at a time when they really need help.

 

 

 

 

*current prices for Nash & Co Solicitors

Acting as a Health & Welfare Attorney

1 Jun

Acting as a Health and Welfare Attorney

 

The first thing to understand about acting as a H&W attorney is that the attorney can only make decisions that the donor lacks capacity to make themselves and that is true for each big or little decision.  So a person may know that they like chocolate but not be able to make a decision about a complex medical procedure, capacity is “time and decision specific”.  This means that the donor may well be making some decisions about their life, but not others.

 

The next thing to understand is that when acting for someone who is found to lack capacity, the attorney must decide in their best interests.  That’s not just an average person’s best interests who is a bit like them, but in that one individual person’s best interests and to do that, the attorney would need to know something about them.  H&W attorneys are usually family members, so hopefully they do know something about them.

 

There is also the issue of life sustaining treatment and the donor can choose to allow the attorney to make decisions or not.  If they donor chooses that the attorney cannot make decisions, then whilst there might and should be consultation with those closest to the donor by the health care professionals looking after the donor, the final decision maker about life sustaining treatment is the health care professionals.  If the family disagree with that decision their only recourse is an application to the Court of Protection, which can be expensive, time consuming and very emotive for family members.

 

If the donor allows the attorney to make decisions about life sustaining treatment, then their decision is binding on the health care professionals, in the same way that the capacitated donor’s decision would be.

 

So apart from life sustaining treatment, what other decisions can the attorney make?  In short – any medical or social care decisions, which would include decisions about treatment, including medication and surgery.  Social care decisions such as what to wear, what to eat and who visits you.  Importantly where to live, which includes whether someone goes into care and if so, which care home they go into.

 

They attorney can request a particular kind of treatment, but it will only be offered if it is clinically appropriate, this is the same as if the donor was capacitated.  The attorney cannot demand the treatment.  The attorney can refuse clinically appropriate treatment, in the same way that the capacitated donor could, which includes things like discharging from hospital against medical advice.  However, the place that the attorney is taking the donor needs to be in that person’s best interests and if the health care professionals believe that the attorney’s decision is too risky, then instigate an application to the Court of Protection to have the attorney removed.

 

People take risks, people make unwise decisions, this is normal and happens all the time and people with a cognitive impairment should also be able to do, as far as possible, what everyone else can do.  The issue becomes the balance between the unwise choice of the attorney honouring the preferences of the donor and the risk that this will incur.

 

Acting for someone when they are unwell is always hard emotionally on those that must make those decisions and care for them.  And making decisions about life sustaining treatment is particularly hard.  For any attorney who needs help, please contact me, I would be happy to support you in this role.

 

 

Acting as a Financial Attorney

18 May

Considerations when acting as a financial attorney

 

When someone has appointed you to act for them, there are several duties that the attorney should fulfil.  The most important consideration is what is in that donor’s (the person for whom you are acting) “best interests”.

 

Firstly you must collate all the information, so that you can understand the situation.  How can you manage someone’s financial affairs when you don’t know what assets and liabilities they have?  The next thing is to work out how to manage those affairs going forward to get the best result for that person, whilst taking into account what they have done in the past.

 

So in the past they may have ethically invested and as long as this investment strategy is still going to provide a reasonable return, then that should continue.  However if that person gave away a big proportion of their income each month to someone who should be more financially independent, then continuing with this strategy is not appropriate.  The donor’s money is for them first, not anyone else.  The only extension to that is other people to whom they have an obligation to provide for, such as minor children.  That doesn’t mean that the donor cannot give gifts of any kind, but the gifts need to be for birthdays / Christmas / marriage etc, which is otherwise known as “on occasion”!  Importantly gifts need to be appropriate to the size of the estate.  It is considered to be in the best interests of the donor that their friends and family “remember them fondly”, but clearly within reasonable limits.  There can at times be a conflict of interest between the donor and attorney, if they are spouses or parent and child, because the more spent on care, means the less the attorney will inherit!  The money remains the donor’s, so the best interests of the donor, not the ultimate beneficiary is what is of paramount importance.

 

The next thing to ensure is that the donor is as well cared for and comfortable as can reasonably be managed, but clearly some of these decisions involve “caring” decisions, which are beyond the authority of the financial attorney, nevertheless whatever care is decided upon has to be paid for, which the attorney has the authority to deal with.

 

All the time, circumstances change, so for example on admission to a care home, that home might be able to meet that person’s needs, but 3 months later after a major deterioration, they may no longer be able to do so, in which case a new placement must be found.

 

Acting as an attorney can often be a lonely, difficult and thankless task.  If you are an attorney and you need help, please contact me, I will be happy to assist you.

The Death Conference – Part 4

30 Apr

Coffin in morque

The Death Conference – my talks

 

Following on from my earlier blogs, I was very honoured to be asked to Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on North Hill on 27 & 28 March 2015.

 

The purpose of the conference was to get the conversation going about death, that death and dying is part of life, and that we should talk about it more or even at all in some cases.

 

Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.

 

So what did I say in my post-death talk.  I gave a run through of what would happen in a straightforward situation and then started to look at what makes the circumstances more complicated.  Starting with a Coroner’s Inquest, they can be for all sorts of reasons, but locally amongst the reasons can be death related to working in the Dockyard, as there was asbestos in the Dockyard in the past.  Or it can be because of an unexplained death, so if someone dies from an illness and they have not seen their GP or other medical practitioner then the death is considered “unexplained”.  Sometimes they can be death with via a post mortem, but on occasions, so Inquests require a hearing and this is a chance for the family to be heard.  I would suggest that legal advice is sought in that circumstance.   The Coroner issues “Fact of Death” certificates, which are not the same as Death Certificates, which is some cases does not hold up the administration of the estate, but in other cases it does, as some assets will not pay out unless there is a cause of death.

 

If the estate is contested in some way, that will cause the administration of the estate to be held up whilst the dispute is resolved.  Some of these claims are about “sorting out a deal”, so if one party is at a financial disadvantage and needs money, the may be in a weak bargaining position and end up settling for less than they might otherwise have got.  This is where the litigator will help to sort out the end result.

 

There are a number of reasons why an estate could be contested, which includes challenging the Will, because for examples someone claims that it is a fraud or because they claim that the testator lacked capacity when they created / signed the Will.  There are also legal challenges of “want of knowledge and approval”, which is linked to lack of capacity and it is also linked to “undue influence”, another potential challenge.  Undue influence is hard to prove, as suggesting something to someone and that person thinks the suggestion is a good idea is very different from doing something against your will, as the person suggesting it is so overwhelming in their insistence that it is a good idea.  It is for this reason that undue influence claims are more often won on want of knowledge and approval than undue influence, which is hard to prove.

 

The next way that an estate can be challenged is by a claim for “reasonable financial provision” by a financial dependent.  There are 2 categories of claimant, a spouse and everyone else.  The amount that a person should leave to their spouse is different level of support than anyone else, so there is a higher standard to support for them.  Anyone else can include children, but an important category of person is the partner they live with, but have not married, without a Will, the rules of intestacy would not benefit a partner, even though they live like a spouse, which leaves the surviving partner having to make a claim against the deceased estate.

 

Intestacy can cause issues, but not always, sometimes the rules work out and might be what the deceased would have wanted or almost what they would have wanted, but not always and beneficiaries can row.

 

My key message at the talk, was that sometime these things happen, but try not to let them happen as it is in this scenario that the lawyers get rich!!

The Death Conference – Part 3

17 Apr

IMG_20150328_105953

The Death Conference – my talks

 

Following on from my earlier blogs, I was thrilled to be asked to Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on North Hill on 27 & 28 March 2015.

 

The purpose of the conference was to get the conversation going about death, that it is part of life, and that we should talk about it.

 

Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.

 

So what did I say in my post-death talk.  The first point that I made was not to panic, it is a distressing time for families, they are shocked and bereaved and they don’t know what to do in the first few hours and days.

 

So first things first, get the funeral sorted, and in order to do that the family will need to register the death and find out if there is a Will and if there is, to find out if there is a funeral clause in the Will.

 

The next thing, find the Will & work out who the Executors are, check any insurance policies to see what effect the death of the policy holder will have, if any and work out if there are any cashflow issues.

 

Then you can start to deal with the administration of the estate, which in simple terms, is gathering the financial information to obtain the Grant of Probate and completing all the necessary paperwork, including the Oath and IHT form.  Then gather in the financial assets and pay any liabilities and the final stage is to distribute the estate in accordance with the terms of the Will or intestacy.

 

There are things that can make a simple estate, as described above more complicated and that includes: Inheritance Tax issues, contested estates, claims against the estate and coroner’s inquests.  Any foreign element can also make things more complicated, whether the deceased was not a national of England & Wales or if they owned assets in another jurisdiction, such as a holiday home in France or Spain!  Homemade Wills can have flaws in them, the drafting is easy to get wrong.  Any unclear terms in the Will can cause issues, so “my children” does not include step children, but does include children from an earlier marriage, is this what you want,  if your Will was professionally drafted, then there may be a claim against the Will drafter.  For any of these issues, seek help!

 

There were lots of questions at the talk, as these issues affect lots of people.  If they knew what they left behind, they may take steps to make sure that they don’t leave their loved ones with a mess to sort out.

 

Thank you Wendy for getting this important conversation started.