The National Care Line
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Legal To-Do List

1. Make a Will or review an existing Will

2. Make a Lasting Power of Attorney

3. Undergo a financial health-check (including welfare benefits)

4. Plan your funeral and consider a pre-paid funeral plan

5. Seek legal advice on protecting your home and savings if you are admitted into care in the future

For most of us, one of the last things we want to do when we meet up is to think or talk about dying, our thoughts at that time are with our children and families. Unfortunately, life is not predictable. In the UK about 700,000 people die each year, and almost 70% of them die without a Will, or die without leaving a correct Will, causing distress, disputes within families and considerable expense in resolving the legal issues.

Meeting with the family at Christmas and the New Year is a golden opportunity for families to discuss the need to plan ahead, particularly if parents are advancing in years and the onset of failing physical or mental capacity is causing concern and where they may be susceptible to undue influence or abuse by others.

Basic estate planning will enable you to put your affairs in order, ensure that your estate passes to those you wish to benefit and avoid disputes on death, protect the family’s assets should you be admitted into care, minimise the payment of inheritance tax, and make provision should you become physically or mentally incapable of managing your property and financial affairs.

Increasing wealth, a widening variety of assets, the increase in second or even third marriages, civil partnerships, children born outside the conventional family to different partners, longer retirement, and the increase in life expectancy means that estate planning is becoming more complex requiring sound professional advice to ensure that your possessions pass to those you wish to benefit.

Key issues to consider are: making a Will, or reviewing an existing Will if more than three years old or where there has been a change in circumstances; making a Lasting Power of Attorney; a financial health-check to maximise income in a tax effective way and to ensure that all means-tested and non means-tested welfare benefits are claimed; planning for the funding of long-term care; and making funeral arrangements.

The two most important documents are a Will and Lasting Power of Attorney.

Making a Will

One of the most important steps to take in estate planning is the making of a Will that reflects your wishes and protects your estate. If you die without making a Will or ‘intestate’, the intestacy rules determine who will administer your estate and who will inherit it. Under these rules, if there are no relatives beyond a group specified in law, then everything you own will go to the Government rather than the people you intended to benefit.

Some home truths....

  • If you do not make a Will the rules of intestacy will determine who will administer and benefit from your estate
  • In most cases, marriage will automatically cancel any existing Will you have made, this may result in the children of your surviving spouse or civil partner inheriting the whole estate on their death with your children receiving nothing
  • Divorce or termination of a civil partnership will cancel the parts of your Will that relate to your former spouse or civil partner
  • If you separate from your spouse or civil partner this will have no effect on the validity of the Will you have already made and they may still inherit regardless of how long you have lived apart
  • If you are co-habiting with someone they may not inherit from your estate, regardless of how long you have been living together.
  • If you own your home and savings jointly with someone they will usually pass automatically to the survivor and may not be covered by the terms of your Will or the rules of intestacy
  • Leaving a gift to your children without naming them may result in step-children not receiving the gift
  • Children will automatically inherit at the age of 18 at which time they may be irresponsible, encountering personal difficulties or easily influenced by others
  • Leaving a gift to a beneficiary may affect their entitlement to means-tested benefits and service
  • If you have re-married and made a new Will leaving everything to your spouse or civil partner they may be able to change their Will after your death, excluding your children and leaving everything to their children
  • If you try to exclude someone from inheriting, for example one of your children or someone dependent upon you, they may still be able to make a claim against your estate after you have died, regardless of what you have stated in your Will.
  • Failing to make a Will or the correct type of Will make result in your estate being used to fund long-term care or inheritance tax rather than passing to those you intended to benefit.

Lasting Powers of Attorney

The good news is that we are living a lot longer than our ancestors, however, ageing brings with it problems of physical and mental deterioration which may restrict our ability to manage our property and financial affairs and make decisions about our health and social care.

A Lasting Power of Attorney (LPA) is a very useful document to ensure that decisions can be made for you when you become physically or mentally incapable. It is important that the person you appoint, the attorney, is responsible, trustworthy and is capable of acting in your best interests. It is advisable to appoint more than one attorney to ensure that there is always someone in place should one of the attorneys be unable or unwilling to act. It will also serve as a means of one keeping an eye on the other to avoid any mistrust arising between them

There are two types of lasting power of attorney:

Property and Financial Affairs LPA

A Property and Financial Affairs LPA can be used to appoint attorneys to make decisions about your financial issues, for example operating a bank account, buying and selling property, investments, dealing with tax affairs and benefits.

Personal Welfare LPA

A Personal Welfare LPA will enable an attorney to make decisions about your health and welfare, for example where you should live, day to day care including diet and dress, the medical treatment to be received, and the giving or refusing of consent to life sustaining medical treatment. The attorney can only use the Personal Welfare LPA if you have lost mental capacity to make the relevant decisions yourself.

The LPA must be registered with the Office of the Public Guardian before it can be used, whether or not you have mental capacity. However, it should be noted that a Property and Financial Affairs LPA can be used while you still have mental capacity, while a Personal Welfare LPA can only be used if you no longer have capacity make a particular decision affecting your health or personal welfare. There is a court fee to register the LPA and it may be necessary to notify certain people named in the LPA of the intended registration.

Jonathan Wilkey - a little about the author

Jonathan is a solicitor, lecturer and training consultant, and a partner in the Gloucestershire firm of Gwyn James Solicitors. He specialises in the law relating to the elderly particularly with regard to asset protection and long- term care, Court of Protection issues and equity release. He lectures nationally on these matters to solicitors, accountants and other professionals on accredited courses, conferences and in-house training. He is a contributor to Elderly Clients: A precedent Manual Ed Denzil Lush (Jordans) and Elderly Client Adviser (ark Group). He has contributed to Mortgage Solutions (Incisive Financial Publishing) and FS Financial Solutions (The Personal Finance Society). He sits on the advisory board of the Society of Later Life Advisers.

He can be contacted on 01594 833042 or at jon.wilkey@gwynjames.co.uk