Tag Archives: Probate

Dying and Bereavement

26 Oct


Dying and bereavement


When a family member is terminally ill, everyone deals with that information in different ways, that includes the person themselves.  The Kubler-Ross model has 5 stages: Denial, Anger, Bargaining, Depression and finally Acceptance.  These stages can work for all parties involved.


Family members can therefore choose to be very involved or not at all and this difference of grieving process has an impact on family relations, at an already difficult time.


Some people are afraid of dying and don’t want to do it alone, they will hang onto life for as long as they can.  Others accept it and at the end willingly go there, rather than cling to life.  Some terminally ill people don’t want their family to witness their death, they consider it personal.  So for family’s who are on a 24 hour vigil, the 5 minutes in which they leave the bedside to have a comfort break will be the 5 minutes that person chooses to pass away.  Others want their family there, will white knuckle the hands of a loved one, rather than let go and feel alone.  Either situation has its emotional impact on all parties.


Some family members will communicate with the others that turn up and let them know that if there is anything they can do to help, they will, yet when asked, are always busy with something more important.  They just can’t deal with facing the situation.


Some family members want to be involved with everything, do as much as they can, which might be more than is required and might be an invasion of the privacy of the dying person.


So what is the answer?  There is no “one” answer and there is no “right” answer.  Everyone deals with death and grief in their own way.  It is important to remember that, however anyone else deals with it, they might not understand how you do and vice versa.  So just give everyone a bit of slack.


When in doubt, imagine yourself in a week, a year and a decade and do the thing that means that you won’t have regrets, whatever that is.  And whatever you choose, know that you are not the only person in the world that has felt that, grief is universal, even if you feel alone in the moment.


Wealth Preservation Schemes – Part 2

2 Oct

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Wealth preservation schemes – Part 2


Following on from my earlier blog about Wealth perseveration schemes.   So far I’ve covered the points that they are challengeable, they may not save tax overall and may cost more, they may not save fees overall and they may not resolve a misdirection of assets and may even create one.


The other point that the leaflet I have been given raised was the Court will take over your affairs if you lose capacity.  Firstly the best thing to do is create Lasting Powers of Attorney, so that you can choose who manages your affairs if you are unlucky enough to lose capacity.  If you don’t then your loved ones can apply to the Court of Protection to appoint someone to manage your affairs.  So to be clear, it is not the Court taking over, they simply retain oversight of someone else managing your affairs.  Their role is to ensure your affairs are managed properly and in your best interests and that your money is used for you and not anyone else whilst you are alive, so that you estate can ultimately be dealt with in accordance with the wishes expressed in your Will.  The Court of Protection is not some malicious body dealing with your affairs, nor is it draconian in the orders that they make.


So in conclusion, will this scheme save probate, yes might well do, if you transfer enough assets into it, but it won’t save money overall.  Will it avoid Inheritance Tax, no, the Trust is taxable and subject to IHT.  Will it protect your bloodline, it probably will ensure that your bloodline inherit your estate, but what if you want someone who isn’t your blood line to inherit?  And what if someone new comes into your life?  Does it stop claims against your estate?  It can certainly make them harder, but whilst the Court cannot compel Trustees to exercise their discretion, the Court can make orders on the basis that their expectation is that they will exercise their discretion in a certain way.


Can the scheme protect from relationship failure, it can’t prevent the relationship failure, but it can put assets out the of reach of the family Court in some circumstances, so yes, it might well be able to do this in some circumstances.  It will protect disabled beneficiaries, yes it probably can do that, but if you do have a disabled beneficiary, then you should take specialist advice about protecting them.  There are some tax reliefs available for disabled beneficiaries.   It avoids Court of Protection control, yes it probably does, but Court of Protection control is nothing to worry about and depending on who the Trustees of the Trust are, Court of Protection control may be preferable.


Does it protect your estate from bankruptcy, it depends, if you gift your assets into the Trust and live for more than 5 years, those assets are no longer available if you become bankrupt, but any assets outside of the Trust are potentially available to the Trustee in bankruptcy.  But if you hadn’t given your assets away into Trust, then you’d probably never go bankrupt anyway, so whilst it will protect them after 5 years, the point is a bit of a red herring.


Does it protect your estate against care home fees?  It might, sometimes these schemes can work, and sometimes they are challenged, but not always.  It does depend on the circumstances and you would benefit from good advice.


Also, it doesn’t make cappuccino, nor does it cure old age, dementia or cancer!!


One final word, take good balanced advice if you are thinking of one of these schemes, understand the negatives as well as the positives, if it sounds too good to be true, it probably is!

Wealth preservation schemes – Part 1

25 Sep

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Wealth preservation schemes – Part 1


I’ve just been handed a leaflet about this fantastic scheme to preserve your wealth against the threat of dreaded care home fees.  This totally amazing scheme will also save you thousands in probate fees, save taxes and avoid any misdirection of assets – I’m surprised it doesn’t make cappuccino as well!!  It also says that the Court will take control of your assets if you lose capacity.


So to give a balanced view of these kinds of schemes, I’d like to say the following:  They might work, but they might not – there is no guarantee.  One of the important things to understand about these schemes is that they are potentially challengeable and depending on the sales tactics of the company selling them, they can be even more challengeable.  I have heard on the grapevine of a Local Authority that challenges every single scheme created by a certain company, as they are aware of the sales tactics used and consider every single one to be a potential deprivation of assets.


If you move your assets into a Trust, which is what these schemes are, then depending on when you go into care in relation to the date of the transfer of assets, the Trust can be undone.  So if you need Local Authority financial support within 5 years, the Local Authority can apply for a bankruptcy order to get the Trustee in bankruptcy to undo the transaction, not a nice thing to happen!  Even after 5 years, the Local Authority can still financially assess you as though you own it (although after that amount of time they might not).


It might save Inheritance Tax, but you would have to live for 7 years after the date of the transfer of assets, otherwise the IHT is still.  Even if you do live for 7 years, the Trust is taxable in its own right, so you will be paying tax and if you have transferred your house into a discretionary Trust and have not been granted an interest, then you could be paying tax on something that was exempt from tax.  The message is that there is potentially no huge saving on tax, in a good scenario there might be a saving, in a bad one, there could be more tax to pay!


Saving thousands in Probate fees.  The cost of getting the Grant of Probate is £215 if you are applying privately or £155 if you apply via a solicitor, so not thousands then!!  If you choose to appoint a solicitor to assist with the administration of the estate, then the fees will vary depending on the size and complexity of the estate and yes, they could be thousands.  But it will cost thousands of pounds to create this trust, so no overall net saving and it will cost hundreds or even thousands to administer the trust during its lifetime.  So yes, there is are no fees on death, which is at a time when you no longer need the money, but there are fees during lifetime, when you might need it.  This is a total red herring and hides what is really going on.


How about misdirection of assets?  For that to happen, then there will need to be no planning or poor planning, as in a Will you can direct exactly who you want to have your assets after death.  A Will also gives you options to change your mind as life and circumstances change.  Once assets are in a Trust, then they belong to all the various named beneficiaries, so what if someone new comes into your life and you want to include them?  Unless there is a clause that says that you can add a new beneficiary into the Trust, then you can’t benefit them, so the Trust may create a misdirection of assets. It might work in some circumstances, so if your surviving spouse remarries, you may not want their new spouse to benefit and you probably want to ensure that the assets ultimately return to your children and this could work well, but there are issues with this.  Good Will planning is essential and review the Will to ensure it is still relevant.

Dementia – Part 8

24 Oct

Dementia – the side effects


I’ve already been through some of the loss of memory and loss of functionality of a person with dementia, with their loss of ability to plan (the executive function).  So as well as loss of brain ability, they can also have a personality change and sometimes they don’t.


We are all individuals, we are all different.  I’ve met some clients with similar traits, but I’ve never yet met anyone who is exactly the same as someone else.  So like all individuals, people with dementia have their own presentation and journey through the condition.


I would stress once again, that I am not a clinician, but I am an elderly client solicitor with a lot of experience of dealing with people with dementia at all stages of the condition.


One of the most common side effects (if they are going to get any) is aggression.  This can be very upsetting for families to see their loved one who was always delightful come out with language they never knew they knew or hitting others.


Aggression is a spectrum presentation and can be anything from a cross word and a stern stare to punching, kicking & biting with all their strength and everything in between.  Some people with aggression may only be aggression (to whatever extent they are) some of the time and sometimes it is all the time.  I had one client who punched someone so hard, she broke her own arm!


An aggressive presentation is more common in the moderate stages and as the dementia progresses their aggression can wane, but this is not always the case, as already said – we are all individuals.  It is suggested by clinicians that this is a fear response, and as the dementia progresses and they don’t know that they don’t know, they become calmer.  I have had clients that were described as “internally agitated”, it is a more unusual presentation, but even in very late stage dementia, they can seem agitated, sometimes tearful and aggressive.


Aggression can take the form of abusive language, without physical aggression.  This is when families hear colourful language!  Or it can be threatening language without the swear words, spoken pointedly towards their loved ones.


There can also be a presentation of paranoia, but this tends to be in the mild to moderate stages, again it is assumed to be a fear response.


I’ve also seen the side effect of hyper sexuality, which is more unusual.  This is when the person with dementia is overtly sexual.  It can create a very difficult situation if the look like their parents, as the parent will look at their child and think it is their spouse in the earlier years, which may be where their world exists at that time.  Therefore when the parent makes overtures to their child, the child will of course rebut them, but the parent feels let down by their spouse, not having realised this was their child.  Even without this situation in families, the person with dementia is being constantly turned down and it is very hard for them, although they may not remember how many times they have been turned down (a small blessing).


There is lots of guess work in respect of people with dementia, as their condition develops and they lose the ability to communicate, no-one knows for sure what they think or how they feel, because they cannot communicate it.


Caring for someone with these side effects takes a great deal of empathy and skill to keep all parties safe and the person with dementia in the optimal health possible.

Dementia – Part 7

17 Oct

Dementia – the late stages


Late stage dementia is not an easy stage for anyone, especially the families of someone with late stage dementia.


So having discussed the early and moderate stages, I will discuss the late stages.


By this time there is no question of whether they have dementia or not, it is quite clear that the person is very unwell.


In these late stages of dementia the person may not know that they don’t know.  They may have been agitated before, but often become calmer.  By this stage they will have a significant level of loss of functioning of their mind or brain.


The loss of functioning is broken down into the two same areas of loss of memory and loss of ability to plan (“the executive function”).  Their memory will be very poor, they will have little or no memory in the short term and minimal, if any long term memory.  They might retain some language skills, but in the end, they will forget those.


Their executive function will be minimal or non existent and only for simple tasks.  They couldn’t plan anything, but if presented with a flannel may realise that they need to use it to wipe their face.


They are often working in quite an instinctive way at this stage.  They may well be able to interpret body language better than speech, so a gentle touch works better than a sentence.  I’ve found a quiet voice and kneeling helps, as it is perceived as passive body language and I am not interpreted as a threat.


I had someone describe this level of confusion like being woken from a deep sleep in the middle of the night.  Someone with capacity would struggle for a few seconds whilst they gathered their thoughts to understand what is happening.  But the person with dementia cannot gather their thoughts, so interventions can still be scary and confusing, they can grab out or push away.  However they are often not so aggressive if they are left alone.  It is simply that they don’t understand and cannot understand.


All their care will need to be provided for them, they will not be able to ask for much help, so everything or almost everything will need to be anticipated.


If people live long enough with dementia they will get to this stage and I hear things like “you’d put down a dog if they were like this”, but euthanasia remains illegal in this country, so  people like this need to be cared for until they die of natural causes and would mostly likely not be resuscitated when and if an acute episode occurs.


By this time, they will need full time support.  It is hard for families to see this, as there is little left of the person they were.



Talking about death

17 May

Talking about death

We live in a very death phobic society. We hear about life saving medical revolutions, but they are not life saving, they are death postponing and there is a big difference.

Years ago, when someone died, they would be laid out for mourners to come and pay their respects, but these days we don’t do that any more, it has been made much more clinical. Death is no longer a part of life within society.

If you asked most people how they want to die, if you can get them to talk about it, they will usually say in bed at home (or in their 80’s in bed with their 8th spouse, who is in their late 20s!!). That’s not where most people die.

We are all going to die. We can use face creams and surgery to hold back time, we can exercise and eat well, but nothing can hold back death forever.

It is therefore worthwhile going through the uncomfortable conversation with those around you about what you want to happen. It is a difficult conversation as children often don’t want to discuss it, as they don’t want to think about the death of their parent.

I often describe a Will or Power of Attorney as a plan. Talking about death and planning really is a plan in the commonly understood sense. Death is always devastating to those left behind. Even if the survivors didn’t get on well, it ends the nature of the relationship; it ends the possibility of a change in the nature of your relationship. In one sense the relationship never ends, whilst there are those left who remember the deceased, but is has changed forever.

For those left behind, the memories that they have of the death of a loved one can be key. It is important that they feel that they have achieved for the deceased the best possible death, where everything has been done and everything has been said that could have been and should have been.

The survivors will have a good feeling and it will help in the process of grieving, but it all starts with a conversation.

What to do when someone dies – Part 2

9 May

What to do when someone dies – part 2

I’ve covered in the earlier blog the functional issues of dealing with the death of someone. But I’m going to get “touchy feely” and I’m unashamed about it, it is important to understand.

Dealing with the functional issues is only part of the process, those left behind have to deal with the emotional consequences of a death of someone close to them.

It is important that the survivors acknowledge the impact that the death has had on them as it can create greater problems for them, as it is a significant stress factor that will magnify any other issues they may be going through.

To the bereaved grieve; it is not a sign of weakness. They need to process the emotions that a death to someone close brings up. Those around the bereaved will need extra patience and forgiveness, as will the bereaved themselves.

The bereaved should not rush to make enormous changes in their lives; they should take time to consider things carefully.

It often takes a whole year to get over the worst of the grief; it is not something done in a couple of weeks. We almost all have birthdays and Christmas as times of significance, but there are other key anniversaries that are important, so to a spouse, their wedding anniversary or the anniversary of their first kiss. To an outsider it may seem less important, but to the bereaved they are huge emotional issues to get through on your own, without the person who has passed away.

Everyone grieves in a different way to everyone else, it is why that couples who lose a child often end up separated, as they struggle to cope with the way that the other one grieves.

Like the tarot card, death can be a change and a new beginning, but no-one should underestimate how hard the new beginning is to achieve. Forgiveness in all its manifestations is key.