Tag Archives: LPAs

Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions

25 Oct

 

Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions

 

There are two ways in which a person can be appointed as an ongoing basis to manage the affairs of someone else and this is by appointing them under a power of attorney or the Court of Protection appointing them under a deputy application.  A person can appoint their loved ones or a professional whilst they retain the capacity to do so.  The Court of Protection will appoint someone if this has not happened, they lose capacity and need someone to support them or take over. Health and welfare decisions can only be made when that person lacks capacity to make decisions for themselves, so they are always relying on the decision making of the attorney to make decisions that they would be happy with.

 

In general, a professional appointment of a solicitor tends to be for finances only, as it is generally accepted that loved ones would know the person well enough to make health and social care decisions, but it would be hard to make decisions against medical advice for a professional who doesn’t know what the individual would want.  It is for this reason that the Court of Protection would be very unlikely to grant a health and welfare deputyship order to a solicitor.

 

So, there are limited circumstances in which I will agree to act as either deputy or attorney for health and welfare.  The circumstances are either when they have no suitable family member to act and I have had an opportunity to sit down with them and go through their medical history and have an in-depth discussion about their care priorities.

 

The other circumstance that I will act is where I am co-attorney with a family member who lives further away and needs someone to be “on hand” to deal with the issues that arise.  I would always defer to the family member who knows the person better, however with my experience, I can make suggestions to the co-attorney about how the persons care can be best managed.  This arrangement works well, I stay in communication with the family member and they are able to effectively support their loved one from a long distance away.  The attorneys and the person themselves know that the role will be undertaken professionally and that their distant loved one is supported in their attorney role, which can be distressing with an added element of feeling helpless through the distance in which they live away.

 

This is work that I love, I get to meet the person and make sure that they are cared for in a manner that is best suited to them and that their loved ones are informed, but still able to maintain their own lives.  It is a great outcome for all!

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Managing the affairs of someone else – A professional appointment – financial affairs

11 Oct

 

Managing the affairs of someone else – A professional appointment – financial affairs

 

Following on from my last blogs about managing the affairs of another person, what should the person do if they have no-one to do that or if they don’t get on with their family?  They can appoint a professional like me and I act for a number of individuals in some cases for both the finance and health and welfare.  I can also be appointed by the Court to be deputy (which is similar to the authority of an attorney), but these appointments are usually for financial affairs only.

 

My appointment is no different from the appointment of the family member, with the one exception that I charge a professional fee for the work that I do.  How much the fee is, depends on the complexity of the matter and in particular where they live, as if they live in care and they require the payment of their care fees and an annual welfare visit, the cost is far less than someone who lives in the community and due to issues arising I have to visit every few months.

 

I have a duty to maximise the estate for the benefit of that person, which means that I have an obligation to ensure that the funds are appropriately invested to ensure that there is an income.  I need to give consideration to the income and how the money is being spent, as someone who has only a couple of hours care a week or even a day, will spend less money than someone who has a full time live in carer.  How the estate should be managed has to have all the relevant information taken into account so that a bespoke strategy is achieved.  I even have to consider how much money is kept in one bank, as if the bank goes bust only the first £85,000 is insured and the rest could be lost.  I have to consider moving the excess to protect the client, if the worst happens.

 

I might be asked to make gifts and I have to consider whether that is reasonable.  I might have to take control of high value assets, so jewellery might need to go into a safety deposit.  If they have a safety deposit box, then I will need to know what is in it.

 

It is also useful to know what is in the Will, so that I don’t sell anything that is specifically gifted in their Will, such as jewellery or property.  If the donor leaves their house to someone and I’ve sold it, the disappointed beneficiary will not be happy with me and this is a circumstance that a statutory Will might be appropriated, so that the Court of Protection will grant a new Will giving a share of the estate that equates to the value of the property to that beneficiary.  So if there is a house worth £200,000 and cash worth £100,000, when the property is sold, whoever receives the cash will get £300,000 if there is only cash, but the Statutory Will would give 2/3 to the person who would have had the property and 1/3 to the person who would have had the cash.

 

My overall aim is to ensure that the wishes of the person are carried out as far as is possible to achieve, so if the client doesn’t want to go into care and it is possible to arrange their care in such a way to achieve that, then I do so.  If their primary concern is to be safe and cared for, then admission into care in some circumstances might be the right decision for them.  How I deal with their money depends on what their financial needs are, what their income is and what their capital is.

 

The firm that I work for has to insure the client’s money as part of their liability insurance, so within the firm there are safeguards to ensure that the clients’ money is safe from fraud or theft, including from me!  It is for this reason that I would not act with a co-attorney for financial matters, as I remain also responsible for the running of their affairs, including the fraud by co-attorney.

 

Having authority over another’s affairs is a big responsibility, which I take very seriously to ensure that the person is cared for as best as is possible to achieve and in the way that they want.

 

Managing the affairs of someone else – Financial Affairs

20 Sep

 

Managing the affairs of someone else – Financial Affairs

 

Following on from my last blog about managing the health and welfare decisions of another person, how do you manage the financial affairs of another person?

 

The starting principles are the same as with the health and welfare, what did the person themselves do before they became ill?  This should form a very important part of your decision, but you are not there to make their decisions, you make your own.  The question is what is in their best interests and all aspects of this issue should be taken into account when making this decision.

 

With regards to finances though, there are some rules around what can and cannot be done, as access to money puts the person at risk of fraud and theft.

 

Firstly, the attorney and donor should not have mixed finances, the funds should be clearly separated out into different accounts, so what money belongs to whom is clear.

 

If there is a large sum to invest, such as the proceeds of the sale of a property, then the investment strategy should be undertaken with the advice of a financial advisor, who will carefully look at the situation and work out what the investment risk profile of this person should be.  Depending on the circumstances, including the health issues and life expectancy of the donor and the amount of money involved, there could be lots of different scenarios to consider in financial terms.

 

The donor should not make investments into the business of the attorney, to provide financial support for them.  This is considered gifting, rather than investing and there should be a great deal of care taken over gifting.  This is also an issue of mixed finances, which again, should not happen.

 

Gifting is a big issue and I get asked lots of questions about this.  Can the attorney make gifts?  There is no simple answer, the phrase that is used regarding gifting is that it should be “on occasion” and “reasonable in all the circumstances and in particular to the size of the estate”.

 

What does on occasion mean?  It is birthdays, Christmas, graduation, house warming etc, gifting should be done at these specific times for specific religious, family or cultural reasons, not just because someone is short of money or has seen something in the shops that they fancy!

 

What about “reasonable in all the circumstances”?  The gift must be one that the donor either did or would have made had they been well.  There is no reason that they would gift anything to an estranged family member, if they hadn’t done in the years preceding their illness.  A plant or toaster is a suitable house warming present, the gift itself must be suitable for the occasion.

 

The other key part of the phrase about the gift being reasonable, is that it must be reasonable in particular to the size of the estate.  The Court of Protection has said that if the estate is over the value of the nil rate band, which is currently £325,000, then if there is nothing unusual about the estate, then the attorney can give away the £3,000 per year that is exempt for inheritance tax.  Where the size of the estate is smaller, part of the consideration will be what gifting that person made when they were well, such as £10 for the birthdays and Christmas of their two children will cost £40 per year, which would be reasonable for a modest sized estate.  When in doubt, the emphasis is to be less generous rather than more or to not make the gift at all.  Any gifts larger than the £3,000 discussed above or loans to the attorney would need specific Court approval.  The Court’s general view is that money is for the donor and not for anyone else, so there needs to be a good reason to gift it, but thinking fondly of someone is considered a good reason.

 

Managing the affairs of another person can be challenging, often because it comes at a time when the family is in distress anyway, because their loved one is unwell.  I am happy to provide support to those attorneys who need some advice.

 

Managing the affairs of someone else – Health and Welfare

6 Sep

 

Managing the affairs of someone else – Health and Welfare

 

In the past I’ve discussed creating LPAs, so that you can appoint another person to manage your affairs, if you become unable to do so.  It is probably worthwhile looking at this from the other angle, how do you manage the affairs of another person?

 

I’m going to take these subjects one blog at a time, starting with how to make health and welfare decisions for another person.

 

The only time that you can ever make decisions about another person’s health and social care decisions is when they lack capacity to make decisions themselves.  Each decision is different, it relates to the complexity of that individual decision and the time in which it needs to be made.  So people can lack capacity for complex decisions (such as what care to have or where to live) and still have capacity for simple decisions (such as whether they are thirsty or want to eat chocolate).  We almost all have something that is a pleasure to us, it becomes a habit, it might be a certain piece of clothing or a certain food (chocolate is a good example) and so people know for a long time that they like that thing, even when they lack insight into the bigger picture of their situation.

 

So the things to consider when making a decision is what would the person want?  That doesn’t necessarily mean that this is the decision that you will make, but it has to be a big influence on your decision.  Sometimes what people want isn’t possible (most people don’t want to go into care, but it might become necessary).  They might not want to make a fuss and accept what is going to happen, but that also might not be the right thing for them.

 

When making a decision you have to look at all the factors, the pros and cons of any situation and in the end you make the decision yourself, if you are attorney or deputy for health and welfare.  It must be an individual decision taking into account all the information that you know about this person, it should not be a generic decision about someone of the same age, race, gender, disability etc.  People have the right to make an “unwise choice” and should not be deemed to lack capacity because they do so and this also goes for attorneys, but the unwise choice must be in their best interests.  The primary purpose of the decision should not be to end or shorten their life, even if that is the case, there need to be another motivation to make a decision to shorten someone’s life, around why it is in their best interests.  This is to overcome the potential conflict of interest that arises when an attorney is a beneficiary of the estate and will ultimately inherit, so the shortening of life will hasten the inheritance.

 

Whatever you decide, you are responsible for the decision and the reasons behind the making of that decision, so if this is ever questioned by a family member of the authorities, the attorney will be able to stand by their decision and the reasons that they made it.  If the decision is not in their best interests, such as discharging a very poorly person from hospital to their home with no package of care, it would be considered neglect and an application to the Court of Protection to have that person removed could be made.

 

I’ve been consulted about lots of these kinds of matters and they are often around going into care, the continuation of medication etc, however I’ve also had the point raised by a client that they were a football supporter and did not want to wear the football strip of their rival team.  Universally the important decisions are often where someone should be cared for and their end of life decisions.  In order to help your potential attorneys, it is useful to have a conversation about these issues, so that they know your views.

 

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

How to prepare for the future – part 1

23 Jun

Envelope with Last Will and Testament

How to prepare for the future

 

I was asked recently to talk about what are the 5 top tips for preparing for aging and any potential decline in wellbeing that that might bring.  And the answer is more straightforward than that, as I came up with a top 4!

 

The 4 things are:

  1. Make a Will
  2. Create Lasting Powers of Attorney
  3. Have a conversation with your family
  4. File your paperwork & keep it organised

 

So starting with making a Will, why is this so important?  It allows you to choose where your belongings go.  Even if you don’t own lots of things of value, people still want to be able to remember you when you have gone and to have a memento of someone who has died is a lovely way to do that.

 

It allows you to appoint Executors, who are the people or person who will make sure your wishes happen, they are the people dealing with the paperwork.  They can also be beneficiaries, but they don’t have to be, the 2 separate roles are different.

 

As well as appointing Executors, if you have children under the age of 18, you can appoint Guardians for those children.  In the event of the death of a parent, the other parent with parental responsibility will primarily become the carer, unless there is reason not to allow that to happen and the Family Court can intervene.  The Family Court will take into account the best interests of the child, which will include any appointment of Guardians in the Will.  Not all cases end up in the Court if the matter is uncontested by the various parties involved, it should be the destination of last resort for a dispute.

 

On top of Executors and Guardians, you can make a funeral wish, which is simple terms is whether or not you want to be cremated or buried, but can include much more detail if you want.  I have had entire memorial service directions, including who will read which passage and a hymn list.  It doesn’t have to be in that detail, but if you have a wish, let your family know, so that they can carry it out, it is usually comforting to them to carry out your wishes as a last act of love for you.

 

The final part is leaving your estate, ie all your assets, to whoever you want, possibly including family, friends and charity.  If you have people who are reliant upon you, then it is best to leave them something, otherwise they can make a claim on your estate, but other than that, you are free to leave your estate to whomsoever you like.  Most people leave it to their family or part of their family and if you are going to disinherit a member of your family, it is helpful to give information as to why, to help to rebut any claim they may make.  Family disputes are completely normal, most families don’t get on, it is only about the degree with which that happens!  So when these disputes become so difficult that the only way to deal with them is via lawyers, whilst the lawyers will love it, the family is losing money!  You cannot stop someone from disputing a Will, the best that you can do is limit their chance of success, which will hopefully reduce the cost of litigation.

 

So if you want to prepare for the future, make a Will, as long as you are over the age of 18, there is no time when it is too early, but there can be a time when it is too late!

The Elderly in hospital

5 Mar

shutterstock_9022426 (20)

The elderly going into hospital

 

I’ve had a number of clients who have had bad experiences in hospital and it is worthwhile considering the reasons why in more detail and considering what, if anything can be done to make the experience better.

 

The issues are often around confusion and mobility, although not exclusively.  Mobility means that they need more support to get around, which often means that the hospital will catheterise them, so that they don’t have to be assisted to the loo so often.  They can end up sitting in the same place for an extended time and therefore can end up with pressure damage, although fortunately this doesn’t happen that often.

 

The confusion can be a big issue though.  They are in a new confusing environment, a place that can be active 24hrs a day, a place that they are unfamiliar with, the food tastes different, they can’t find the loo and all the faces are different.  And on the basis that they are in hospital for an acute reason, add to that that they may be in pain and it is easy to see why problems arise.  They get upset at the change and can get aggressive, which makes caring for them even harder, but even if they are not aggressive, they are struggling to adjust to the change of environment, only to be moved on in a couple of weeks.

 

Families will sometimes choose not to have a loved on admitted into hospital and go through all of this, when they think that the end is inevitable anyway.  There is no short right or wrong answer to this dilemma.  If the end is inevitable, it is easy to understand why the families would want their loved one to stay in the environment in which they are familiar, to die as peacefully as possible.

 

The problem with the “inevitable end” is that I’ve been told it is really hard to predict, so may in fact not be as inevitable as we think.  Hospital may be the answer to resolve the acute problem, with the aim to get them back home to a familiar environment as quickly as possible.  Or if not a familiar environment if the acute episode has changed their presentation sufficiently that they have to go to a new place, but again the aim should be to have them into a long term environment and out of the short term environment of hospital, which simply isn’t designed for people to stay in for long periods of time.

 

As for what is to be done, it is for the individual and their families to decide there is no one right or wrong answer.  The point is to understand the issues, take advice and try to make the best decision possible with the information that they have.  And very importantly even if hindsight indicates a different decision may have worked better, remember that hindsight is a perfect vision that we are not blessed with at the time of making the decision.