Author: Mamta Rajanwal

In previous articles we have looked at putting in place Lasting Power of Attorneys in order to appoint Attorneys that you trust to look after your health & welfare affairs and manage your property & financial affairs, in the event that you lose capacity and are unable to make your own decisions. In order to put in place Lasting Power of Attorneys, you need capacity. So, what happens if you need someone to look after your health, welfare, financial and property affairs, but do not have capacity to appoint someone? Someone could make an application to make decisions on your behalf where you are no longer able to make decisions yourself, and be appointed as a Deputy. That someone is usually a friend or a relative, but can also be a professional. In this article, we look at deputyship and how a Deputy can be appointed.

A person can be appointed as a ‘Deputy’ in order to manage the affairs of a person that is unable to manage their own affairs, this is known as a deputyship. The application is made to the Court of Protection, who will decide whether to appoint the person making the application as a Deputy. If it is decided that they should be appointed a Deputy, the Court will pass an order giving the person authority to act on your behalf where you are unable to manage your own affairs and do not have an LPA in place. 

Types of Deputyship 

There are two types of Deputies that can be appointed:

1. Property and financial affairs Deputy– who are normally responsible for managing your financial and property affairs, such as paying bills, for example. 
2. Personal welfare Deputy– who are normally responsible for making decisions about your medical treatment and how you should be looked after, for example. 

Fees for making the Application

Not only are there court fees to pay when making the application, but there are also annual fees that must be paid every year after the Deputy has been appointed. The appointed Deputy will be responsible for these costs. At the current rate, the application fee for making the application is £365.00. On making the application, if the court decides that a hearing is required to decide on whether the deputyship should be granted, then a court fee of £485.00 is currently payable.  

There are also fees to be paid after the Deputy has been appointed, the amount to be paid will depend on the level of supervision that the deputyship requires. The fees are currently £320.00 for general supervisor and £35.00 for minimal supervision, this fee will also apply to some property and affairs deputies who are managing less than £21,000.00.

If the Deputy appointed is acting as a deputy for the first time, then there is also an additional fee of £100.00 that will be payable.

You can get help to make payment of the application and supervision fees, and more information about fees can be found on the government’s website www.gov.uk/become-deputy/fees.  

For more information about appointment of deputyship and how you can be appointed as a Deputy, please contact us on 01753 486 777, for a free initial consultation.

We follow on from our article entitled ‘why you are never too young to create a Will and get your affairs in order’ and look at why you are also never too young to have Lasting Power of Attorneys and Financial Advice in place. A copy of our article entitled ‘why you are never too young to create a Will and get your affairs in order’ can be found on our website at www.astonbond.co.uk/legal-blog/.

Lasting Power of Attorneys 

In the midst of a pandemic, it is fair to say that everyone is concerned about their health and welfare. Times are unprecedented and even with a vaccine now found, we don’t know how long it will take for the vaccine to take effect and the substantial effects of the virus eliminated. 

In addition, on an ‘ordinary’ day, we do not know what is around the corner, and in the event that you lose capacity because you are unwell for example, it can be reassuring to know that you have a person or persons you trust to look after your health, welfare, financial and property affairs. In the absence of a Lasting Power of Attorney, only you have authority to deal with your own affairs, and as a result it means that your affairs will be left unattended simply because there is no other person with authority to deal with your affairs whilst you are unable to. 

With regards your health and welfare affairs, often where a Lasting Power of Attorney is not in place, medical professionals are left with no choice but to make decisions on your behalf where you are unable to do so. However, you may wish for a loved one to make such decisions on their behalf. In order to have this, a Lasting Power of Attorney should be registered and in place.

The Lasting Power of Attorneys last your lifetime, unless revoked. On your death, the Lasting Power of Attorneys come to an end.

In our previous article, ‘Things that cause temporary capacity issues’ we look at the legal and medical definition of capacity in a bit more detail. This article can be found on our website at www.astonbond.co.uk/legal-blog/.

Financial Advice 

Whilst you are getting your affairs in order, this can be a great time to reflect on the assets that you currently have and think about the assets you would like in the future, for example you may wish to purchase a property or a vintage car for example. Seeking advice in relation to your finances at an early stage can often assist with setting clear objectives on how to reach your goals, looking at your finances and setting out realistic options in order to achieve those goals, and having professional advice to assist you in making the best financial investments for you, your future and where you see your future headed. If you would like to speak to a financial advisor, we have contacts that we can share with you.

In addition to the above, whilst you are considering your estate present and future, obtaining financial advice can be a valuable way of reviewing what happens with your pension(s) and how to protect your care home fees from being withdrawn from your estate in order to pay for your care. It is also a good way of looking at succession planning, and in what ways could you protect your estate from paying excess Inheritance Tax. 

At Aston Bond, we offer a free initial consultation to discuss your Wills and Lasting Powers of Attorney(s). If you would like to benefit from this service, please do not hesitate to contact Jade Gani or Mamta Rajanwal on 01753 486 777 or at jgani@astonbond.co.uk / mrajanwal@astonbond.co.uk. 

It is often assumed that preparing Wills, creating LPAs and seeking financial advice should only be done at a later stage of your life once you have, for example, worked numerous years of your life, purchased many assets, got married, had children or bought your dream car. In this article we look at the reasons why you are never too young to create a Will and get your affairs in order.

Wills 

Where you do not have a Will in place, on your death, the Intestacy Rules will apply to your Estate. In the majority of cases, this means that the person or persons dearest to you, whom you may wish to benefit from your Estate, may not benefit by virtue of these rules. 

At the time of your death, it is extremely difficult to know how much your Estate is worth. Therefore, although you may feel at this stage of your life that your Estate is not worth much, it could potentially be worth more than you think at the time of your death. For example, if you were to die in an accident that was not your fault, compensation may be payable to your Estate, increasing its value.

Covid-19 is a true life example of how we cannot predict what the future holds. Simply, we do not know what lies around the corner. Therefore, it is extremely important to review your Estate and get your affairs in order, so that your loved ones are protected in accordance with your wishes.  

Once your Will is in place, it can be amended or a new Will created depending on your circumstances at that time, and the changes that you wish to make. Nevertheless, don’t be afraid to speak to the Solicitor drafting your Will, not only of your current circumstances, but any future plans that you may be aware of, or you hope to achieve. The solicitor drafting your Will can then be mindful of this when drafting your Will in order to cover your plans as much as possible, and advise you accordingly at that time. 

Having a Will in place means that no matter what lies around the corner, you can be rest assured throughout your life that you have your affairs in order and have security to protect your loved ones and retain control of what happens to your Estate. 

A Will is not only about your finances, but can also cover a number of other matters. Some of these matters include provisions to help your Executors carry out your wishes in relation to your funeral wishes, appointment of a guardian of any minor children, setting out health care wishes or even appointing someone to look after your pet, for example.

We look at these, and a few other examples as to why you are not too young to put in place a Will, in more detail, below:

Children: you may have children under the age of 18 years of age. You may or may not have thought about who you would trust to look after your children in the event that you were no longer around. A provision as to who you wish to appoint as a guardian to look after your child or children can be included in the Will. By having this provision, you have reassurance that your Executors are aware of who is to be appointed as the Guardian, so that your children are not left in a vulnerable position of not knowing what is happening, where they are going, who is going to look after them etc. Not only is this reassurance that your children will be appointed a guardian in accordance with your wishes, but including such a provision in the Will creates an effective legal appointment. 

Pets: We often overlook the fact that we can appoint someone in our Will to look after our pets in the event that we predecease them. They are our family after all, we have looked after them, raised them and brought them into our lives as our loved ones. Therefore, we would want to know that they too are looked after. This can be done by including a relevant provision in your Will. This might include appointing someone to look after them, and/or setting out your wishes as to how they should be looked after. 

Fiancé, boyfriend, girlfriend, partner: where there is not a Will in place, the Intestacy Rules will apply. In accordance with the Intestacy Rules a fiancé, boyfriend, girlfriend or partner, may not receive anything from your Estate. In the event that you wanted to protect that person, in order for them to inherit from your Estate, you wishes would need to be set out in a Will. 

Other Investments or items of value: often other investments or items of value can be overlooked as forming part of our estate. These might include death in service benefits, insurance policies, pensions and items of sentimental importance for example, jewellery, art work, pictures, medals to name a few. Provisions can be made in the Will known as ‘specific legacies’ where these items can be named individual and left to a person of your choice, for example you might wish to leave your vintage car model to your nephew, or an expensive handbag to your aunt. 

Where a person has not been nominated to benefit from your pension benefits or insurance policy directly, then this will form part of your estate and should be addressed in your Will.

Funeral Wishes: matters such as funeral wishes aren’t necessarily discussed amongst family members at an early stage of our lives. Having provisions in a Will setting out your wishes will give clarity to your Executors as to your wishes in relation to how you wish your funeral to take place, what you would like to happen to your body or even where you would like to be buried, or your ashes scattered. For example, you might wish to have a religious burial, or perhaps you might wish for your body to be donated to science for the purposes of research.  

Avoid family disputes about the estate following your death: this can be an incredibly difficulty time for loved ones. There is nothing to say that a dispute will not arise, but the extent of the dispute is likely to be minimised hugely by having a Will in place in the event that it does. Having a Will in place sets out your intentions clearly, where the Will is drafted accurately and properly. In the event that you anticipate a dispute arising in the future, for example because you have left out someone in your Will who feel they should be included, you should discuss this with your Solicitor so that they can take this into consideration when drafting the Will and ensure that your wishes are protected and your affairs are in order, in order to mitigate the risk of a dispute arising as much as possible. 

At Aston Bond, we offer a free initial consultation to discuss your Wills and Lasting Powers of Attorney(s). If you would like to benefit from this service, please do not hesitate to contact her on 01753 486 777. 

You may have heard the term ‘mental capacity’ floating around, however may have been unsure as to its meaning. You may also have been told that you could lose capacity temporarily or permanently. Capacity plays an important part when it comes to preparing Wills and dealing with your affairs. We look at the legal definition of capacity and consider some of the things that cause temporary capacity issues.

The two relevant sections of the Mental Capacity Act 2005 to take into consideration when thinking about temporary capacity issues are sections 2 and 3.

Section 2 of the Mental Capacity Act 2005 sets out that a person lacks capacity in relation to a matter if at the time where capacity is required, that person is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. Section 2 of the Mental Capacity Act 2005 also sets out that it does not matter whether the impairment or disturbance to their mind or brain is permanent or temporary. 

Section 3 of the Mental Capacity Act 2005 sets out that a person is considered to be unable to make a decision for themselves where they are unable to:

1. understand the information relevant to the decision to be made;
2. retain the relevant information to the decision to be made; 
3. to use of weigh the relevant information as part of the process for making the decision; or communicate their decision, be it by speaking, using sign language or any other means.  

From the NHS website (www.nhs.uk), capacity is defined as being ‘the ability to use and understand information to make a decision, and communicate any decision made. A person lacks capacity if their mind is impaired or disturbed in some way, which means they’re unable to make a decision at that time’. 

In consideration of the above definition of capacity, we look at some of the things that may cause a temporary lack of capacity.

Consciousness – the state of being aware of and responsive to your surroundings

Being unconscious or barely conscious may cause a temporary lack of capacity, this is because in this state of mind, your awareness and response to your surroundings is significantly less than on an ordinary day, or in more severe cases, you have no awareness of your surroundings and are unable to respond to the same. Unconsciousness may be caused by an accident, as a result of an illness or a treatment for that illness, being under anaesthetic, or even being under the influence of alcohol or drugs. 

Short Term Memory loss- where you forget things you heard, did or saw recently

Short term memory loss can be caused by a number of different factors. To name a few examples, some of the factors that may cause short term memory loss include:

• a lack of oxygen to the brain; 
• alcohol or drug use; 
• an injury to, or trauma to the head; 
• anxiety or depression; 
• epilepsy; 
• seizures; 
• stress; or 
• insomnia. 

Mild Cognitive Impairment- the stage between normal aging and dementia 

The symptoms of Mild Cognitive Impairment include often forgetting things, losing your train of thought, having trouble remembering your ordinary routines such as finding you way to the shops, feeling anxious and overwhelmed by making decisions, or becoming more impulsive. 

Delirium- sudden confusion 

Sudden confusion can be caused by a range of factors. Some of the factors that can cause sudden confusion include:

• an infection, for example a urinary tract infection. Urinary tract infections are a common cause in elderly people or people with dementia. A more serious urinary tract infection can also cause pain. The level of pain combined with sudden confusion can also cause temporary capacity issues;
• alcohol or drug misuse;
• some types of prescriptive medicine can also cause sudden confusion; 
• a severe asthma attack; or 
• low blood sugar level in people with diabetes. 

So why is all this important? 

There are a number of legal requirements that have to be satisfied in order to prepare a valid Will in the United Kingdom. One of those requirements is that at the time of making the Will, the person making the Will must have had capacity. It is so important to ensure that at the time of making the Will, the person who made the Will had capacity in order to mitigate any future claims arising against the estate after passing and ensure that the estate is distributed in accordance with the wishes of the person creating the Will. 

If there are any doubts as to a person’s capacity, the individual should be formally assessed by someone who has the appropriate skills to do so, such as a doctor or other medical professional. If you have doubts as to a client’s capacity, you may wish to consider the capacity test set out in the Mental Capacity Act 2005:

1. Does the person have an impairment of their mind or brain, as a result of an illness, or external factors such as alcohol or drug use?
2. Does the impairment mean the person is unable to make a specific decision when they need to? 

In the event that you lose capacity, temporarily or permanently, you might wish to appoint an attorney, or attorneys to make decisions about your finance and property, and your health and welfare by way of a Lasting Power of Attorney. The Lasting Power of Attorneys will give your appointed attorneys the power to manage your property and financial affairs, and make any health and welfare decisions where you lack capacity to do so. You should always appoint attorneys that you trust to act on your behalf. 

The application for putting in place a Lasting Power of Attorney for financial and property affairs asks when you would like your attorneys to make decisions. There is an option to give your attorneys this power only when you do not have mental capacity. However, it should be noted that this is more restrictive as each time your attorneys try to use the Lasting Power of Attorney they might be asked to prove that you do not have capacity. The Lasting Power of Attorney for health and welfare can only be used when you lack capacity to make decisions about your health and welfare.

We offer a free initial consultation to discuss your Lasting Powers of Attorney. If you would like a free initial consultation, please contact jgani@astonbond.co.uk or call and speak to a member of the Wills & Probate department on 01753 486 777.

Family, friends and carers can all play an incredibly important part in assisting someone in need of care. Yet, why with such important roles do conflicts arise between family and carers? In this article, we look at the ways in which conflict can arise, and the methods to resolve those conflicts with one objective in mind, to care for the individual in need. 

Often when a loved one becomes so ill they are unable to do those things they once could do, it can be difficult for that person’s nearest and dearest to accept the reality that they now face. Many emotions, thoughts and feelings can be experienced by family members, including the person in need of care. At such times, many might feel helpless and are likely to feel strongly that they want to help the person who is poorly in whatever way they can. 

Conflicts between carers and family members, and even family members amongst themselves, can arise where everyone is working individually and are not communicating with one another. In such situations mis-understandings can arise, there can be disagreements as to the correct type of care, where to receive that care and even who can visit the person who is sick. 

Such conflicts can lead to the person in need of care feeling very alone and un-supported, especially where family members may drift away as a result of conflicts that have arisen or where they feel they are no longer needed as a result of the person in need having a carer. 

This can be a particularly disheartening time for families, including carers who might feel that they have failed to deliver the best service, or have let the person in need of care down.

How can we resolve these conflicts?

The first and foremost way to resolve conflict might be to help all family, friends and carers to understand that they usually all have the same intentions in mind; to care for, and help, the person in need. When it is understood that they can all work as a team to help the person together, it can often ease tensions when they arise. Use this mutual position to work together, and let your loved one know that you are there to support them together. 

Once you have understood that your intentions are often the same, try to understand one another; don’t be shy to ask one another questions. Why did the conflict arise? Why do you feel a certain way? Have a discussion about your thoughts and feelings and how you can progress forward in the best way, and try to be honest and open with each other. Communication is incredibly important, if you find yourselves in an argument or a heated conversation, step away and take some time to reflect, and most importantly remember that the most important thing is looking after the person who is unwell. 

It is important to stay calm, with a clear mind you are in a better position to make the best decisions for everyone involved; put your emotions to one side and think about the situation for what is it. Remember that you can all work as a team with the same objective in mind.

Where you find that everyone is not on the same page, sit down and make decisions together. Think about what everyone’s strengths are, and where their passions lie; for example, one family member may love cooking and make the most nutritious and healthy meals, therefore you might consider allocating the responsibility for food to this person. Another person may love to play the piano, perhaps this person should be responsible for an evening of music for all to enjoy. 

Each and every person, be it family, friends or carers each play a significant role in caring; individually and together. Keep this in mind and allocate regular time slots to come together and have discussions on how things should progress moving forward. In an ever-changing life, particularly in the current circumstances where times are incredibly uncertain, it is always good to have regular catch ups to avoid any misunderstanding and so that everyone is effectively ‘singing from the same song sheet’. 

Use the carers valuable knowledge and experience, together you can make an even bigger difference for the person in need. Don’t forget to remind each other, particularly the person in need of care that you are not alone, you have each other; individually and as a team you can do this. 

Safeguarding concerns 

Unfortunately, there can be circumstances where not everyone has the right or the best intentions at heart. In such circumstances safeguards need to be put in place to protect the person who is unwell. 

In order to protect yourself in the eventuality that you might become unwell and be unable to make decisions for yourself in the future you should consider appointing an attorney to make these decisions for you by way of a Lasting Power of Attorney. Attorneys can make decisions about your health and welfare or your property and finance on your behalf. Unlike the Lasting Power of Attorney for Finance and Property the Lasting Power of Attorney for Health and Welfare can only be used where you are unable to make decisions about your health and welfare for yourself. You should always consider appointing a person or persons that you trust to be your Attorneys. 

In the event that the person who is unwell needs protection from a person or persons who may not have the best intentions at heart, it is vitally important that families and carers come together and regularly review the progress of the person who is unwell. If you notice something suspect, don’t ignore it; come together and carefully review the situation for what it is and consider the options available to resolve the matter. If you are unable to find a solution, don’t be hesitant to contact a professional for advice; if the issue is very serious seek legal advice.   

If you would like to put in place Lasting Power of Attorneys, please contact us now at jgani@astonbond.co.uk for a free initial consultation.