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. 

There are three main ways in which you can own property in the UK;-

1. In your sole name;
2. In your joint names as Joint Tenants; and
3. In your joint names at Tenants in Common.

Sole Name

Holding property in your sole name means that you own the legal title to the whole of the property alone.

Joint Tenants

When you own a property with another person(s) as Joint Tenants, all of the legal proprietors have equal rights to the whole of the property.  This affects how the property will pass on your death, as rather than passing in accordance with the terms of your Will, your property would instead pass via survivorship to any remaining joint proprietor who survived you.

Tenants in Common

When you own a property with another person(s) as Tenants in Common, you each hold your shares in the property separately, and by default, these shares are presumed to be equal.  As the interests in the property are held separately, this means that if one proprietor faced debt proceedings etc., only their specific share of the property may be included as one of their assets.  Holding a property as Tenants in Common also means that when one of the proprietors die their share will pass according to the terms of their Will, rather than to the other proprietors automatically.

What is a Declaration of Trust?

A Declaration of Trust is a legally binding deed that sets out how you own your property with another person(s), and this can include people who are not registered as an owner at the Land Registry.  These deeds can be made at any time whilst you own the property.  

Declarations of Trust can be made in relation to any properties that you own either in your sole name or with another person(s) as Tenants in Common.  However as they determine the beneficial interest each party has in the property, these deeds cannot be set up for properties that are held in joint names as Joint Tenants.  Therefore, the Joint Tenancy would need to be severed in order for a Declaration of Trust to work.  However this is not a complicated procedure and is currently free of charge to register with the HM Land Registry.

Why would I need a Declaration of Trust?

A Declaration of Trust may be required in any situation where you do not wish for each proprietor to have equal interests in the property.  For example, it may be that one party contributed more to the initial deposit price, or that one party does more of the maintenance involved with a rental property etc., and therefore you would like to alter the share so that the respective proprietor has a higher interest in the property to reflect this.  

It may also be required where one proprietor is a higher rate tax payer and the other a basic rate tax payer, and therefore you may wish for the income received from a rental property to be apportioned in a tax efficient manner.  It is important to note that entering into a Declaration of Trust for Income Tax purposes will need to be reported to the HMRC.

It is also possible to prepare a Declaration of Trust in a property that you own in your sole name and this may be required, for example, where a family member has financially assisted you with the purchase of your property and you would like to ensure they receive their funds back when the property is later sold.  By preparing a Declaration of Trust, this party is therefore entitled to a beneficial interest in the property despite not being on the legal title itself.  

It is recommended that for all properties where a Declaration of Trust is created, but particularly those created for properties owned by a sole proprietor, that a restriction is entered onto the title at the Land Registry.

Other Considerations

It is important to consider that when creating a Declaration of Trust, one party is sometimes gifting their interest in the property to another.  They should therefore be aware of the risk that they are reducing their assets and may no longer be entitled to as much of the property as they were before, and therefore this may have an implication on unfortunate future events, such as divorce etc.  

It is also often necessary to seek tax advice from an Accountant in relation to any tax implications the Declaration of Trust may impose on each party.

If you would like more information on Declarations of Trust, or to book an appointment for a free initial consultation with one of our solicitors to discuss these deeds further, then please do not hesitate to contact Jade Gani (jgani@astonbond.co.uk), Rachel Jones (rjones@astonbond.co.uk) or Mamta Rajanwal (mrajanwal@astonbond.co.uk).

Never underestimate the power of a kind word or gentle touch, especially if you are a legal professional working in the Private Client sector. Your soft skills can earn you loyal Clients for life yet, as young lawyers learning and training – and even as experienced lawyers, they are very often grossly underappreciated.  

Our Clients will be facing some of the toughest decisions of their life whilst possibly also dealing with an illness, vulnerability or grief. If you want to be remembered as the professional-yet-compassionate pillar-of-strength they need to call in those difficult times, then you need to master your ability to relate and empathise as well as honing your knowledge and technical skills. 

It all sounds simple, doesn’t it? Don’t be a robot, do be a human. Yet, having entered the legal professional to help make a difference to people’s lives, so many lawyers I have known (or my clients have known) still come across as rigid, cold and unsympathetic. So, here are just a few of many small changes you can make to help improve your soft skills and better your Clients’ experience. 

Be Sincere About a Client’s Loss

Do we really think saying “Please accept my condolences for your loss, now moving on to business” makes us seem genuine? Sure, we deal with death on a daily basis and that can desensitise you to the subject sometimes. However, you always have to remember that to your Client, this isn’t just a file on your desk, it is a piece of their world, their heart, their life that has been taken from them. If your Client is collected enough, ask questions about the Deceased to get to know them better. After all, you will be dealing with their most intimate affairs from here on out. 

When you are first notified of a death, take a moment to really listen to your Client. If they tell you that the Deceased was poorly for a long time, let them know that you are sorry they suffered. If they say the death was sudden, ask how they are coping with the shock of it all and explain how you are there to help in any way they can. Encourage your Clients to focus on the funeral first – it is a critical part of the grieving process that is more important than immediately securing your signed terms of business. 

Be Aware of Key Dates & Occasions

Take two minutes out of your usual file setup process to log or diarise some important dates and/or occasions. For example, you might want to make a note of the Deceased’s birthday, anniversary of death or wedding anniversary so that you are cautious of what communications you have with your Clients around that time. Their sole focus will be making it through those occasions for the first time without their loved one, and they won’t be inclined to tell you themselves not to contact them on those dates. So make a note not to disrupt them at that time – nobody wants to be reminded of their loss and the administration involved on these occasions. 

If you want to go the extra mile, you might also want to note the birthdays of your Clients and avoid these too – there are so few occasions to celebrate in the wake of grief, you wouldn’t want to mar the rare moment. It might sound like added administrative tasks you could do without, however, you will already have all this information to hand from ID, Death Certificates, Marriage Certificates etc, so it isn’t really all that difficult. 

Remain Flexible

Your Clients might want to undertake certain tasks on their own – like distributing personal items or cancelling passports etc – and this can help with their grieving process. Other times, they will worry and stress about everything little thing that needs to be done. Re-assure your Clients that you are there to help with as much, or as little, as they need – that’s your job. Remind them, when they call or email about a worry or concern that they are not ‘bothering’ you – that’s your job too! 

With Clients who seem capable and willing to close an account or investment etc, you will garner more goodwill by being honest with them and saying that you think they could do it just as easily as you, if they want to. If you are up-front like this, they will trust you when you say that something really requires an expert hand. Further, where there is the death of the first spouse, offer to help with SEV forms or give general advice about joint assets etc. It will take you two minutes to do and your Client will never forget the gesture. 

Small Gestures Now Make a Big Difference Later

We all know that the best kind of referrals are the ones made by your happy Clients to their friends, family & colleagues. There are so many ways that you could adjust your working and improve your soft skills which will boost your Client base in this way that I could write a whole book; and I am still learning too! Hopefully, if you adopt some of the suggestions in this article you will start to see great results in your Client satisfaction, just as I have seen with my own Clients. But, like all good referrals, why should I ramble on when I can let my Clients do the talking for me…

Testimonials

“I appreciate your clear and compassionate advice and enjoyed meeting you” 

“I wanted to drop you a note to pass on a huge thanks to Jade for all her hard work, attention to detail and a genuine human touch that’s been so appreciated” 

“From the moment I met Jade, she stood out from all of the other solicitors I had met to and spoken to. In such a difficult time, she was the only one that showed real human care and empathy and made us feel at ease” 

“Jade came across as attentive and knowledgeable – we felt like we were in really good hands from the start”

“Jade has been so approachable and understanding, yet factual and logical – it’s not often you come across someone working in this field who has these combined qualities”

“With many grateful thanks for being a shining light & great support at a difficult time for me over this last year or so. You are indeed a treasure!”

“Thank you for all your incredible help – I could not have done this without you (professionally and personally!)” 

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.