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What Happens to your children

BY: Paul / 0 COMMENTS / CATEGORIES: News

A guide to appointing guardians in your will.

There is a general conception that Wills are for the elderly and those in ill-health, but life is uncertain and everyone needs a Will, to ensure your hard-earnt assets go to the people or causes which you care the most about.

Certain events prompt people to make a Will such as an increase in personal wealth, buying a property and having children.

When parents make Wills, they want to ensure that their children are provided for in the best way. Whilst the primary focus is usually on financial provisions, what about your children’s welfare, especially if both of you die?

Nobody wants to think about dying young or leaving their children behind, especially young children but what happens if you should die before your children reach the age 18? Those under the age of 18, in the eyes of the law, are classed as minors. If their parents are dead, they will need a legal guardian to help and support them.

A guardian may be appointed through a Will to have parental responsibility for your children. Parental responsibility means all the legal rights, powers, responsibility and authority of a parent (as stated in the Children Act 1989.)

Guardians have the legal rights and responsibilities of parents. In many cases the children will live with their guardians, but this is not always possible or necessary. For instance, the parents may be divorced and the children live with their mother. Father dies and by his will he appoints his parents as the guardians of his young children. The children continue to live with their mother the guardians (grandparents) are able to help make the major decisions and will have rights to have regular contact with the children

Whether you are thinking of making a new Will or revising a current Will to ensure that your children are looked after, here are a few things you may want to consider.

What happens with your children if guardians are not appointed?

If you do not appoint a guardian, an application to the Family Court may be necessary. This may be by a family member or by local Social Services.

In some circumstances, children could be placed in care until the court appoints a guardian, which could be lengthy and add to your children’s distress.

A verbal agreement between family and friends is not considered to be enough to satisfy the Courts of a guardianship.

What if I am divorced?

On divorce you will usually have retained parental responsibility for your children even if they do not live with you. As a result, you will be able to appoint a guardian. Because of the divorce, this can be a particularly sensitive issue and you will need legal advice tailored to your circumstances and the needs of your children.

When do you need to appoint a Guardian?

If you are married at the time of your child’s birth and either the mother or the father dies, the surviving parent will have parental responsibility for the children. Similarly, if you are not married and a father dies first, the mother will retain parental responsibility. However, if you are not married, the father will only have sole parental responsibility where he is named on the birth certificate of a child who has been born after 1 December 2003.

What are the benefits of appointing guardians?

  • You can be sure your children are going to be looked after by someone you have chosen and trust.
  • You will know that important decisions in your children’s life such as education, housing, medical treatment are in the hands of someone who knows of your plans or who can be trusted to make sensible plans
  • You can leave money to your guardians to cover the costs they will incur, so that you know your children would be bought up comfortably without financially burdening their guardian.
  • You can might be able to make your house available for your children and their guardian

How to choose a guardian?

Being a guardian is a big responsibility. You must discuss it with the people you choose and get their input and agreement.

You can appoint up to four guardians in your will and these are some of the things you may want to think about:

  • Who is most able to care for child emotionally, financially and physically?
  • Who do your children already feel comfortable with?
  • Who can provide similar parenting styles and values of your own?
  • Would the person have enough time and energy to devote to your children?
  • Would your children have to move far away and uproot their life?
  • Does the person you’re considering have any other children?

Most people appoint only two guardians, such as another couple. It is usual for a couple to appoint the same guardians in relation to their children as they usually only become effective on the death of the second parent. However, young couples with children commonly appoint both sets of the children’s grandparents and leave a separate letter of guidance incorporating the above factors as to how they wish for their children to be provided for.

We always recommend naming substitute guardians especially if your original guardians are older than you (e.g. if you are appointing your own parents). This can save you having to change your Will in the event your primary guardians are unable or unwilling to act.

A guardianship clause may be changed or cancelled as often as you like during your lifetime, to fit with changes in your personal circumstances.

Naming a guardian should be regarded as an important part of any parent’s estate planning, if not the most important. By including a guardianship clause in your will, the appointment is easily identifiable and can be considered quickly. You can see that issues relating to guardianship can become very complex. These are some of the most critical decisions you will make to protect your children

 Sophie Sullivan

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Will A UK Lasting Power Of Attorney Or Deputyship Order Be Recognised Overseas?

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

With an ageing population, mental capacity is a growing concern for many and Lasting Powers of Attorney (LPAs) can bring peace of mind to those who are worried about how their affairs will be dealt with if they lose mental capacity.

Equally, people owning assets overseas is on the rise, with one in six ‘baby-boomers’ owning a second home, according to a 2018 study by the Institute of Fiscal studies.

So, how do you make sure that your clients’ overseas assets are protected if they lose mental capacity? Is an English LPA or Deputyship Order sufficient?

The simple answer is: probably not!

Sara Janion, Director of Worldwide Lawyers – a UK-based company, which connects UK solicitors and legal practitioners to independent lawyers across the world – and Notary Public of England and Wales, explains:

“A UK Lasting Power of Attorney is highly unlikely to be recognised by foreign courts on its own, without further process.

“For instance, in Spain you would need to obtain a legalised and officially sworn translation of the LPA that it is acceptable under Spanish law. In addition, it’s usually also necessary to get a sworn statement from a lawyer with the appropriate expertise stating that, under English law, the LPA gives the attorneys authority to deal with the assets of the donor.

“All this makes getting a Spanish Court to recognise the English LPA a very complex process, not to mention the time and additional costs it takes.

“When it comes to Deputyship Orders, whilst it can be possible to get some foreign authorities to recognise an existing Deputyship, it’s expensive and time consuming at a time when it might be critical to have access to the foreign assets and when other funds may be limited or unavailable.

“As ‘attorneys’, who are given power under an English Lasting Power of Attorney, are not able to delegate their power, they are not able to appoint another ‘attorney’ to handle the foreign assets like properties or bank accounts. This means that, for example, in order to sell a property in Spain for someone who has lost mental capacity, the English ‘attorney’ would need to travel to Spain to deal with the transaction.

“A much easier option is to ensure that both an English LPA, covering any English affairs, and a separate Spanish Power or Attorney, which is specifically worded to authorise the appointed attorneys to deal with any Spanish assets in the event of loss of capacity, are prepared.

“How difficult or easy this process is will, of course, depend on what country the assets are located in.

“However, we always advise legal practitioners who are preparing an English LPA to consider how their client’s overseas assets will be dealt with and to encourage them to seek appropriate legal advice from a lawyer in that country in the same way they would recommend that anyone with assets overseas considers a separate will to cover those foreign effects. Ultimately, it’s about future-proofing. It’s hard enough for family members dealing with effects of a loved one losing mental capacity, without having an unnecessarily laborious and costly legal battle to be able to do what’s best for them.”

Article from Worldwide Lawyers

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Secure Website

BY: Paul / 0 COMMENTS / CATEGORIES: News

Secure Website

We operate a secure website so that our clients and visitors in general can browse the site and use our online will writing forms with full confidence. To signify this when using an SSL Certificate, so browser’s use a padlock symbol in the path window at the top of your screen.

It should look like this:

SSL Certificate

So when you use our website to view information about estate planning online you can rest assured of the security of our site. On top of that you are also safe in the knowledge that we’ve been writing wills since 2008. Your contact information is safe with us and so is the future of your assets and the family you intend it all to go to.

Our wills have been proven many times and have been upheld by the courts and many grants of probate have been issued following production of one of our wills.

We look forward to helping you when contact us to arrange a free home visit to discuss your requirements.

Contact us here :

Or 01325 324515

Email: info@empsolutions.co.uk

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Why do we have funerals?

BY: Paul / 0 COMMENTS / CATEGORIES: Funeral Plans, News

 

Funeral and burial traditions have been dated as far back as 100,000 years ago with modern human remains found in Qafzeh, Israel. There are even some findings which suggest evidence of intentional burials by Neanderthals dating back 250,000 – 300,000 years ago, however many of these sites are a topic of controversy between experts.

With evidence of burial traditions dating back throughout the ages, taking care of the deceased remains part of our culture today despite changes in funeral traditions. But why do we do we have funerals?

For early societies with religious beliefs, and for believers across many of today’s faiths, a funeral ceremony will usher the dead on to the next life. During ancient times many had believed their loved ones would not be able to cross over to the next life if they did not have the rites and rituals of a properly conducted funeral.

Modern funerals can tie to the sentiment of securing entry to the next life but generally involve a much more dignified and affectionate send off for the deceased. Whether the funeral involves religious beliefs or not, it still plays a very important part in coming to terms with the loss of a loved one.

Time to stop and think

Immediately after a death there can be a lot to do and the funeral might be the first real opportunity the family have to stop, and begin to acknowledge that the deceased is really gone, with their friends and family.

A co-founder of the What’s Your Grief website, Litsa Williams, has written about how funerals can be the starting point for grieving.

“It can be a really important ritual and the first step for so many people, and as much as you may be dreading it, you may be surprised at the comfort you find in meeting people you may never have known were touched by your loved one in some way.”

A funeral can be an important opportunity for people to gather together and demonstrate their love and respect for the deceased while offering support and sympathy to the bereaved. The death of someone close is clearly a difficult time and having people around that care for the bereaved and the deceased can be a considerable comfort.

 

A celebration of life

More often now the funeral is seen as an opportunity to celebrate a life well lived. There are less strictly regimented religious ceremonies with the funeral featuring more reflective elements which are unique to the personality of the person that has passed.

From a cheerful dress code to a quirky music choice, funerals can be an opportunity to remember the wonderful personality of a loved one who is missed but never forgotten.

At a time of great upset, a funeral with well-known ceremonies can offer some familiar structure for people close to the departed. The familiarity of words spoken and songs sung during these ceremonies can reduce some of the burden of having to think about what to do next and instead let us focus on our feelings.

No matter how people choose to mark their passing or the passing of a loved one, the familiarity of funeral ritual is also a factor in why we take such care over funeral planning. Whether to prepare the way for the next life, to gather friends and family to say goodbye or just to have one final opportunity to demonstrate our individuality, funerals are an important part of our passing.

E.M.P SOLUTIONS CAN PROVIDE PRE-PAID FUNERAL PLANS TO SUIT ALL YOUR NEED’S https://www.safehandsplans.co.uk/aff/90/e.m.p-solutions-will-writing

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Living through Loss

BY: Paul / 0 COMMENTS / CATEGORIES: Funeral Plans

It’s one of the hazards of an actor’s life: that people think you’re the same off screen as you are on it. Because the actor Humphrey Bogart often played “tough guys” in his films, in real life he was constantly being challenged by men who wanted to prove that they were tougher than he was. He had to learn to joke or charm his way out of these annoying situations.

At a lower level, actors who play villains in soap operas may find themselves being shouted at on the street – or worse – for things that they’ve only done on screen.  A lot of people find it hard to distinguish between fantasy and reality. And even if you know the difference, it can be difficult to feel it. A good actor can make the character he plays seem real, so that it’s hard to remember that the actor has a life of his own.

Take the British actor Jason Watkins, who was widely praised for his performance in the two-part docu-drama The Lost Honour of Christopher Jefferies. He portrayed a retired school-teacher who was wrongly accused of murder. And his acting was so good – so convincing – that he won a BAFTA. And he’s gone on to have other successful and widely-watched roles. Each time he’s convincingly become another person, so that it’s hard to remember that he has a life of his own. But he does. And with life comes loss. He and his wife Clara Francis has suffered one of the most painful things any human being can suffer: the loss of a child.

Their daughter Maude was only two-and-a-half when, at the beginning of 2011, she died suddenly and unexpectedly. She had been ill with a cough and breathing difficulties, but the doctors who examined her didn’t think it was serious – just a minor infection. She was sent home from hospital and her parents thought, yes, she’s getting better. They put her to bed in her cot. A few hours later her father went to check on her. She was dead. The infection wasn’t minor but very serious: it had triggered an over-reaction from her immune system, which had begun attacking the very organs it is designed to protect.

The condition is called “sepsis” and the two bereaved parents are now campaigning for greater awareness not just among the public, but also in the medical profession. This is one way in which they are trying to cope with the pain and loss they still feel six years after their daughter’s death. Out of the very bad thing that happened to them, they want some good to come for others. Perhaps their campaign will help another parent to spot the danger-signs of sepsis or prompt a doctor somewhere to think again about what appears to be a minor illness. And then a child who might have died will get the right treatment and live to grow up, have a family and enjoy a successful career.

Jason Watkins and his wife might never hear that their work has saved another child, but they know that they are doing something positive in response to their devastating loss. They also know that their work isn’t just helping strangers: they have a living daughter called Bessie for whom they want to be the best possible parents. The loss of Maude caused them so much pain that it would have been easy to be paralysed by it and think of nothing else, neglecting the world and their continuing responsibilities there.

They couldn’t allow that to happen: Bessie still needed them. Their campaign about sepsis has been one of the ways in which they pulled their minds away from their bereavement and back to the lives that hadn’t ended and that they wanted to keep safe. It was the right thing to do for themselves, their living daughter, and the dead daughter whose memory they are honouring and whom they will never allow to fade or pass from their minds.

Contact us for information on Pre-Paid funeral plans 01325324515 – info@empsolutions.co.uk

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COMMON MISTAKES IN LASTING POWER OF ATTORNEY APPLICATIONS

BY: Paul / 0 COMMENTS / CATEGORIES: News, Power of Attorney


A poorly drafted Lasting Power of Attorney (LPA) can lead to unnecessary stress and expense for the Donor or the draftsman, or in the worst cases leave a vulnerable person without any LPA in place at all. This month’s CPD will consider the common errors that even the professional draftsman can make when drafting instructions for LPAs of any type.

WHAT’S THE ISSUE?

LPAs are complex legal documents and care must be taken when drafting them to ensure they are completed correctly. The Office of the Public Guardian (OPG) will reject any forms that are completed incorrectly or that don’t meet their standards. According to the OPG around 15% of LPA forms submitted to them have errors.
Getting it wrong can be expensive if the mistake isn’t recognised until registration. The registration fee for LPAs is £82 per document. If they are rejected, they must be corrected and re-registered and this costs £41 per document if sent back within 3 months. If the corrected forms are sent back outside of this time limit you will need to pay the full fee again.
If the registration doesn’t take place until after the Donor has lost capacity, then they may be left with no LPA in place at all if a mistake is found. At this point it will be too late to correct the form and resubmit it. This is why it is so important that the forms are completed correctly, and appropriate advice taken if you are unsure about any aspect of the form or how you can put the Donor’s wishes into practice.

PROBLEMATIC INSTRUCTIONS
The most common errors with instructions that cause issues for LPAs are:
• Lack of clarity
• Making contradictory statements
• Attempting to ask an Attorney to act beyond their powers
• Legally invalid instructions
• Incorrectly handling how replacement Attorneys will start acting
Often a Donor will have very specific wishes in mind for how their Attorneys should act and what kinds of decisions that can make and how they should make them. Unfortunately, what the Donor wants isn’t always legally possible so it’s essential to explain the limitations of Attorneys powers and manage a client’s expectations when it comes to drafting instructions.

CONTRADICTORY STATEMENTS

Instructions are legally binding on the Attorneys and they must be followed. It’s therefore incredibly important that any instructions are clearly written and legally valid. If the instructions aren’t valid then the OPG may refuse to register the LPA or may need to apply to the Court of Protection (COP) to have the offending instruction severed.
Instructions can be invalid because they are too vague and cause uncertainty in what the Attorney is actually allowed to do. When drafting instructions make sure that there is no room for misinterpretation and that what is expected of the Attorney is sufficiently clear.
Instructions that contradict other sections in the LPA will cause the LPA to fail at registration. The most common invalid instructions are those that are incompatible with the way the Attorneys are appointed in section 3 of the form. Where the Donor has appointed multiple Attorneys to act, they must decide on how they will make decisions. There are three available options here:

1. Jointly and severally
If Attorneys are appointed to act jointly and severally, they may act either together or independently. This allows more flexibility as any one of the Attorneys may act alone. Especially useful where a decision needs to be made urgently.
Problems arise where a Donor then includes instructions that impose further restrictions that contradict this appointment. Common examples include stating that the Attorneys must act together in certain circumstances, or that one Attorney has a deciding vote. These types of instruction are contrary to what the Donor has selected in section 3 of the form and would have to be severed.
For a recent case example of this see JF (Case No 12925291). In this case the Donor had appointed three Attorneys and, in the instructions, had stated “My two daughters (if surviving) must always agree on any decision jointly before any actions regarding my estate can be implemented. OM may act as an attorney independently of my daughters.” The OPG would not register the LPA as the instruction contradicted the nature of the Attorney’s appointment, so they applied to the COP to seek a severance of the instruction.
The COP recognised that severing the instruction would lead to an LPA that didn’t match the Donor’s wishes, and also recognised that the Donor could achieve what she wanted only by executing two separate LPAs. The Donor consented to the severance, so it was directed that the instruction was severed, and the LPA registered without it.
In the same run of severance applications to the COP (they tend to be reviewed in bulk) the COP also heard the case of SH (Case No 1291136T). In this one they directed for an instruction to be severed as the instruction “While my attorneys are authorised to act jointly and severally I specifically direct that all decisions must be made by at least two of my attorneys and that no attorney has the power to make decisions individually.” was incompatible with the joint and several appointment they had made.

2. Jointly
If Attorneys are appointed to act jointly then they must act unanimously. If one Attorney becomes unable to act the remaining joint Attorneys also become unable to act. As such, any instruction stating that the Attorneys must act by majority.
Up until recently it was also impossible to re-appoint surviving joint Attorneys as replacement attorneys, with the effect that if one joint Attorney stopped acting the survivors continued. It was assumed that if the donor appointed A, B and C as joint Attorneys that they wanted them to act all together or not at all, so naming them all as replacements so they could be ‘reappointed’ if one died contradicted this. Donors have previously been told to avoid such appointments as they would fail. This position has changed with the case of Miles v The Public Guardian and Others [2015] EWHC 2960 (Ch).
In Miles the donor had appointed her attorneys A and B to act jointly in certain transactions, and jointly and severally in regard to everything else. She only wanted her replacement attorney C to act if both A and B could no longer act. The wording used was as follows:
“My attorneys may act jointly and severally save with regard to:
1. any sale of my property at [and it set out her address] (or any property which may subsequently replace it); and
2. any transaction in excess of £10,000
when all surviving attorneys who are capable of acting (whether originally appointed or who have been appointed by and are acting in substitution) shall act jointly in so far as there may be more than one of them able to do so but in the event that there is only one of them capable of acting I expressly re- appoint that attorney to act alone.”
It was held that this provision was valid as there was nothing in the MCA 2005 that expressly prohibited it. In his judgement Lord Justice Nugee did admit to finding part of the drafting confusing, specifically the wording in the second set of brackets. This highlights the need to be especially clear when drafting such complex instructions. To that end the following wording was suggested in Miles as a means of appointing joint attorneys with provision for the survivor of them to act alone:
“I wish my attorneys A and B to act as follows:
(1) So long as both attorneys are able and willing to act, I wish them to make the following decisions jointly: sale of the house; transactions over £10,000 [or the like] but all other decisions to be made jointly and severally;
(2) In the event that one of my original attorneys A and B is unable or unwilling to act, I then appoint the remaining of my original attorneys A or B, as the case may be, as replacement attorney to act solely;
(3) In the event of both my original attorneys being unable or unwilling to act, I appoint C as a replacement attorney to act solely [with whatever variations the case requires].”
Note that the OPG have not yet updated their official guidance (LP12) since this case, so the OPG may still query such an instruction at registration.
3. Jointly for some decisions, jointly and severally for all other decisions.

This option is the hybrid power, so it’s benefits and drawbacks mirror those of joint and several/joint appointments.
Instructions must apply equally to all Attorneys named on the form. It isn’t possible to appoint A, B, and C and state that A and B can only make decisions about the Donor’s personal finances and C can only make decisions about the Donor’s business. At least not within a single form. To achieve something like this the Donor would need to make and register two separate LPAs.

INSTRUCTIONS THAT GO BEYOND AN ATTORNEY’S POWERS

The powers that Attorneys have under both Health & Welfare and Property & Financial Affairs LPAs are quite wide and cover nearly all aspects of dealing with an incapacitated person’s daily affairs. They are subject to some statutory restrictions, however. By way of example, Attorney’s cannot change the donor’s Will, consent to a marriage or divorce, or vote on their behalf.
Attorneys must also act solely in the best interests of the Donor and are excluded from making decisions that are in the best interests of anyone else, even if connected to the Donor. An instruction directing Attorneys to make provision for someone else would therefore be invalid unless the Donor had a legal obligation to maintain that person. In the case of Re Strange (an order of the Senior Court Judge made on 21 May 2012) the court was asked to consider whether guidance in an LPA asking the attorneys to maintain the donor’s husband was valid or whether it needed to be severed as contravening the attorneys limited powers to make gifts. The wording of the guidance was as follows: “I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so”. It was held that the guidance in the LPA was valid as any spouse would have a statutory duty to maintain the other spouse. That said, legal advice ought to be sought before including such an instruction.
Instructions directing the Attorneys to maintain anyone who is not a spouse or civil partner, or dependent child of the Donor would be invalid and would have to be severed. In their practice note “Giving gifts: a guide to the legal background for deputies and attorneys” the OPG themselves suggest that a Donor may normally rely on being able to direct their Attorneys to maintain a person only if they have provided for those needs in the past, or it is reasonable to conclude that the person would have provided for those needs.
Even where the maintenance provision is allowed you must be incredibly careful in how this is drafted. In the case of Re Bloom (an order of the Senior Judge made on 16 March 2012). Here the instruction referred to making provision for the Donor’s wife for her ‘maintenance and benefit’. The words ‘and benefit’ were severed by the COP as this was too wide and went beyond just maintenance.
A further example of common instructions that go beyond an Attorney’s power relates to gifting. Attorney’s only have limited powers to make gifts of the Donor’s property. Under section 12 of the MCA 2005 an attorney may dispose of the Donor’s property by making gifts in the following circumstances:
(2) the Donee may make gifts –
(a) on customary occasions to persons (including the attorney) who are related to or connected with the donor; or
Page 5 of 7
(b) to any charity to which the donor made or might have been expected to make gifts.
The value of the gift must not be unreasonable in all of the circumstances, and many factors will be taken into account to determine what is reasonable, amongst them the size of the donor’s estate.
Section 12(3) defines ‘customary occasions’ as:
(a) the occasion or anniversary of a birth, a marriage or the formation of a civil partnership; or
(b) any other occasion when presents are customarily given within families, or among friends and associates.
Under section 23(4) the Court of Protection may also authorise the making of gifts that are not covered by section 12(2), such as larger gifts or gifts made for inheritance tax planning purposes
Any instruction in an LPA that attempts to extend an Attorney’s power to make gifts will be invalid and will have to be severed before the LPA can be registered. The following types of instruction would be invalid:
• directions to set up trust funds for the donor’s grandchildren
• gifts at non-customary occasions
• regular maintenance payments to people the donor is not legally obliged to maintain
• loans
• lump sum payments to the donor’s adult children upon a certain event such as marriage or purchase of a house.

LEGALLY INVALID INSTRUCTIONS

Instructions that ask the Attorneys to do anything illegal are obviously invalid, so any instructions attempting to induce the Attorney into committing a crime are impossible.
This crops up in LPA forms more often that you would think. Each year the OPG deals with around 120 cases where an instruction has been included in an LPA that is asking the Attorney to assist the donor’s suicide in some way. Under section 2 of the Suicide Act 1961 it is illegal to assist a person’s suicide. This includes helping them to attend a euthanasia clinic in a country where this is perfectly legal. Therefore, any instruction in an LPA directing the Attorney’s to assist the Donor in ending their life is invalid and would have to be severed by the COP before the LPA could be registered.
Instructions made in the wrong type of form are also legally invalid. An instruction in a Health & Welfare LPA regarding dealing with the Donor’s finances or vice versa would be legally invalid as the Attorney has no authority over this.
PROBLEMS WITH REPLACEMENT ATTORNEYS
Replacement Attorneys may only step in if an original Attorney dies, loses mental capacity, disclaims their appointment, divorces/dissolves their marriage/civil partnership to the Donor, or in the case of Property

& Financial Affairs LPAs becomes bankrupt. These ‘trigger events’ are covered in section 13 of the MCA 2005.
You must avoid including any instructions in an LPA that direct for a replacement Attorney to step in and start acting upon any event other than those trigger events listed above as this would be invalid.
The following types of instruction would be invalid and would need to be severed:
• A direction for a replacement would step in temporarily to cover an original Attorney who has gone on holiday
• A direction for a replacement to step in when requested by the original Attorneys
• Where original Attorneys were appointed jointly and severally, a direction for the replacement to step in and totally replace both original Attorney’s when only one had become unable to act.
It is something that is commonly requested, but it is impossible to state that a replacement Attorney will replace a replacement Attorney. If a Donor wishes to name Attorneys, followed by replacements, and then also name a third level of replacements they would need to make and register two separate LPA forms. One form should appoint the original Attorneys and their replacements, and the second form should name the third level of replacements as the main Attorneys but also include an instruction to state that it will only come into force if the original LPA fails.

HOW INVALID INSTRUCTIONS ARE DEALT WITH

If a provision in an LPA is invalid the OPG can apply to the COP to have the instruction severed so the LPA can be registered. The COP deal with around 100 severance applications a month, taking up a lot of court and OPG time as well as causing long delays to registration and stress to Donors. Under Schedule 1, Paragraph 11 of the Mental Capacity Act 2005 the OPG has a duty to apply for severance where an LPA contains an invalid provision and they cannot register a defective LPA until the COP makes a ruling on the case and directs them to register.
Before going to these lengths, the OPG will contact the Donor if they still have capacity and present them a choice. They may choose to go ahead with the severance application, or they can draft a new LPA that removes the invalid instruction and giving them a chance to change the instruction to achieve their aims in a way that the OPG don’t find issue with. This would involve paying a new registration fee though.
If the Donor lacks capacity at the time the registration is made then this option of redrafting the LPA is lost, and the OPG may only apply to have the offending instruction severed. They will contact the Attorney’s for their consent to the severance, as they would the Donor if they had capacity. The unfortunate consequence of this is that this may lead to an LPA being registered that no longer meets the aims of the Donor.

CONCLUSION
When it comes to drafting instructions for LPA’s we can’t stress enough how important it is that the instructions are clear, concise, and legally valid. If you are ever unsure of how likely an instruction is to be accepted then we recommend first turning to the OPGs own guidance on LPAs (Form LP12)

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Modernising Succession

BY: Paul / 0 COMMENTS / CATEGORIES: News

From the SWW College of Will Writing

Modernising Succession: Law Commission Consultation

Last month (13th July 2017) the Law Commission launched a consultation paper to tackle issues surrounding the law of Wills, chiefly aiming to bring Wills into the modern age. The Law Commission has highlighted the age of the current legislation as a root of the problem and suggested that the law needs to be modernised to reflect changes in society, technology and medical understanding – we’ve come a long way since the Wills Act was first introduced in 1837.

This month’s paper will examine some of the main proposals put forward by the Law Commission, focusing mainly on matters related to capacity.

WHY THE NEED FOR MODERNISATION?

The underpinning statute for succession law is the Wills Act 1837 (WA 1837). This has been updated over the years as changes in societal norms have called for it, for example the latest significant amendment was the addition of section 18(5) and section 18D to take account of the provisions of The Marriage (Same Sex Couples) Act 2013. Before that the WA 1837 saw the addition of sections 18B-C to reflect the introduction of Civil Partnerships via the Civil Partnership Act 2004. So while the WA 1837 has been updated over the years, perhaps after nearly 200 years it’s time for a review.

Our understanding of mental health and capacity has also moved forward since the main case setting out the legal test for capacity was decided in 1870 (Banks v Goodfellow [1870] LR 5 QB 549).

Modern families need a more modern approach to succession. More people are cohabiting without marrying or forming a civil partnership, and more people are remarrying and merging families.

More needs to be done to address digital legacies and the increased reliance on technology, possibly by introducing electronic Wills in future.

THE MAIN PROPOSALS:

For ease of reference to the summary of the consultation paper this paper uses the same headings.

Electronic Wills

To meet the formality requirements of s9 WA 1837 a Will must be in writing. Currently a Will may be prepared electronically using a word processor or Will writing software, but at some point it must be printed and sent to the client to be executed. A wet ink signature by the testator and witnesses is required.

People are become increasingly reliant on technology and expect to be able to manage many of their affairs online; from mobile banking to managing billing accounts online, so why not their Will? The Law Commission proposes developing this area of law so that Wills could be validly executed electronically, making the whole process digital and introducing ‘electronic Wills’. This could make the whole process of Will drafting cheaper and more convenient for the Will Writer and testators. Page 2 of 6

Electronic Wills could make making a Will more convenient, thereby increasing the amount of the population who make a Will. They could be especially convenient for testator’s with physical disabilities who would be more likely to engage with a fully online service. They could also be stored more securely, with much less chance of being lost than a physical copy tucked away in a drawer in the testator’s home. There is also potential for an electronic Will system to be linked to an electronic probate system that would streamline the whole process of admitting a Will to probate.

No other jurisdiction has successfully introduced electronic Wills. To do this new legislation would need to be introduced to recognise electronic signatures in the context of executing Wills. The Law Commission has identified two main challenges to introducing electronic signatures to Wills. These are security and infrastructure.

In terms of security the electronic signature must be more than the testator’s named simply typed. This is too susceptible to fraud as any electronically typed name looks the same no matter who types it. Similar problems apply to digital images of written signatures. More complex methods would be required such as biometrics or encryption based signatures that could be linked to the testator more reliably. The Law Commission concludes that electronic signatures must obviously be at least as secure as handwritten signatures, and as there are various means of making an electronic signature special legislation will be required to address how to assess what is a secure enough electronic signature for a valid Will.

Regarding infrastructure, the systems used to enable making and executing a Will electronically must be accessible. Adopting too rigid requirements could have the opposite effect and discourage people from adopting electronic Wills. There would be similar barriers to overcome with cost; if the price of developing a secure electronic Will system is too high people will not take it on.

Supported Wills

A formal support scheme has been proposed for assisting those with diminished capacity to write a Will. Many people with capacity issues are supported by their friends, family, and carers who help them make decisions. Currently the system allows for supporting testators in their decision making to an extent, for example by providing extra assistance to help a testator with communication issues, or by using various methods to help a testator understand the extent of their estate. However, the current legal test for capacity does not actively promote supported decision making so new legislation may be required moving forward.

It is suggested that a system of supported Wills would assist these people and fill the gap between those who have the capacity to make their Will and those who lack capacity and who must apply for a Statutory Will.

This may give more people the ability to write a Will, giving people with diminished capacity greater testamentary freedom. Of course this will still need to be balanced with providing protection for testator’s and preventing people being unduly influenced.

This would ensure that fewer people with diminished capacity would need to apply to the Court of Protection in order for a Statutory Will to be prepared; keeping costs down for them as any formal support Page 3 of 6

scheme would be cheaper than the process of applying for a Statutory Will, although it would likely be publicly funded.

Capacity

Since the introduction of the Mental Capacity Act 2005 (MCA 2005) there has been debate over whether the statutory test should be applied when assessing testamentary capacity or whether the common law test should continue to be applied. It is proposed that testamentary capacity should be governed by the capacity test in the MCA 2005 rather than the current common law test in Banks v Goodfellow, effectively putting an end to that uncertainty.

The language of the common law test could be described as archaic, so bringing the language up to date would be beneficial for testator’s and practitioners seeking to apply the test.

This leading case on the legal test for capacity was decided in 1870, and since then our understanding of mental health and disorders that can effect capacity has greatly improved. In the case of Key v Key [2010] EWHC 408 the effect on a testator of bereavement was considered when applying the common law test, which was not made with this in mind. To address the needs of an aging population and reflect our greater understanding of disorders than can affect a person’s capacity it is suggested that a new test of capacity is needed.

The two-part capacity test offered by section 2 of the MCA 2005 applies in multiple contexts and should be familiar to Will Writers, legal professionals, medical practitioners and others whose opinion will be sought when assessing capacity. Applying the statutory test would also unify the laws approach to capacity, as currently there are circumstances where the statutory test is applied, for example in relation to Lasting Powers of Attorney and when determining capacity for Statutory Wills, and other circumstances where the common law test applies.

The presumption of capacity, unless otherwise proven, is particularly important in the Law Commission’s view, as it draws attention to the English legal system’s ‘functional approach’ to capacity and the fact that capacity must be assessed on a case by case basis. The starting point must always be to presume that a testator has capacity, a drafter cannot assume that a testator lacks capacity on the basis of advanced age or medical condition as this alone is not enough to prove a testator lacks capacity.

The consultation recommends providing statutory guidance for doctors and others carrying out capacity assessments. The MCA 2005 is already supported by a code of practice, and the Law Commission proposes including guidance on applying the statutory test specifically to those writing Wills to this code of practice.

As an alternative to the above, the consultation paper also discusses the merits of bringing the common law test up to date by statute. This would mean that the common law test could be redrafted and made more accessible by using modern language. It would also bring it up to date with current medical understanding of capacity, defeating the criticism that the current test is outdated and was decided at a time when mental health and the range of factors that can effect capacity were not properly understood. Furthermore, it would also be an opportunity to clarify key aspects of the test. Page 4 of 6

Knowledge and approval

A testator must know and approve of the contents of their Will at the time of its execution. This is clearly closely linked to capacity. A testator may have the required testamentary capacity but fail to understand the content of their Will. A testator may still have sufficient knowledge and approval even if they do not understand the language used by the drafter exactly, for example technical legal terms, as long as they know the effect of their Will.

Where a testator lacks knowledge and approval their Will is invalid. It is for the person propounding the Will to establish that the testator had knowledge of and approved the contents of their Will (In the Estate of Sherrington, Sherrington v Sherrington [2005] EWCA Civ 326, [2005] 3 FCR 538).

Where a testator has read their Will or had it read over to them before execution, or where the contents have been brought to their intention in any other way such as through sign language, and the Will has been executed, a rebuttable presumption that the testator knows and approves of the contents of their Will arises.

Currently there is overlap between knowledge and approval and undue influence. There are many cases where a Will has been challenged on the grounds of lack of knowledge and approval when it would be more appropriate to challenge it on the grounds of undue influence. The full consultation paper identifies 3 main reasons for this, but combined they all highlight a failing in the application of undue influence. These reasons summarized are as follows:

 Where lack of knowledge and approval is alleged the burden of proving the testator had knowledge and approval lies on the person propounding the Will, whereas the onus lies on the person challenging the Will when undue influence is alleged. Worse, the person who challenges the Will on the grounds of undue influence and loses their case will find themselves paying the court costs.

 People are generally reluctant to accuse a family member of fraud or undue influence, so a claim of lack of knowledge and approval is preferred

 Claims of lack of knowledge and approval can be used to ‘cloak’ what is really a claim of fraud or undue influence, as was the case in Wintle v Nye [1959] 1 All ER 552

The Law Commission’s proposal is to narrow the scope of knowledge and approval to make it clear that the test of whether a testator knew and approved of the contents of their Will is entirely separate from the question of whether they freely executed the Will and were not coerced.

Signing on a testator’s behalf

A Will must meet the formalities of s9 in order to be valid. A key requirement is that a Will must be signed by the testator, but may be signed by some other person in the testator’s presence and at their direction (s9 (a) WA 1837). This is all the legislation has to say on the matter. Under the current law no restriction is imposed on who may sign the Will on the testator’s behalf; this could be a witness, the drafter, or even a beneficiary of the Will. Page 5 of 6

It is suggested that the law should place restrictions on who can sign on the testator’s behalf as the current position is too wide and could leave a testator open to fraud. It seems reasonable to place restrictions on who may sign a Will on behalf of the testator, as there are already restrictions on who may witness a Will so logically it makes sense for similar restrictions to be imposed on who may sign it.

Undue influence

If a Will is made as a result of the testator being subjected to fraud, fear, or undue influence it is invalid; however the onus is on the person claiming the undue influence, there are no presumptions to assist the person challenging. There is also a high burden of proof on the person claiming undue influence. Testamentary undue influence appears to be limited to cases where the testator was coerced, or enough pressure was applied to overpower the testator’s freedom of action. The courts are more inclined to find undue influence where the testator is physically or mentally weak, as where a testator is mentally weak less pressure may be required to overbear their Will.

This is in contrast to undue influence where lifetime gifts and contracts are concerned, as here there are a number of presumptions. The main presumption is the existence of a ‘relationship of influence’ between certain parties, which may give cause for the gift to be explained. Where there is a presumption of a relationship of influence, there may not necessarily have been any undue influence. There is a presumption of a relationship of influence where a gift is made by:

 a child to a parent or guardian

 a beneficiary to a trustee

 a client to a solicitor

 a patient to a doctor or other medical practitioner

 a follower to a spiritual leader

If there is a relationship of influence, the person alleging undue influence must also show that the gift calls for explanation.

The Law Commission believe that the current system of setting a gift aside due to undue influence is too narrow in comparison to proving undue influence with a lifetime gift. Two approaches are proposed for a doctrine of testamentary undue influence; a structured approach or a discretionary approach.

The structured approach would be based on the lifetime gifts rules and would be a two-limb test. Under this, a presumption of undue influence would be raised if:

 there exists a relationship of influence; and

 the gift calls for explanation

Relationship of influence would be presumed in respect of gifts to:

 a trustee

 a medical adviser

 a person who prepared the will for remuneration

 a professional carer

Page 6 of 6

For all other types of relationship there is no presumption and the fact a relationship of influence exists would need to be proven.

When considering if the gift calls for explanation, the court would consider two factors:

 the conduct of the beneficiary in relation to the making of the will; and

 the circumstances in which the will was made

There is also a suggestion that where a beneficiary was instrumental in the preparation of the Will there should be a presumption of undue influence.

Under the alternative discretionary approach, the court could instead presume undue influence if it were satisfied that it is just to do so in all the circumstances of the case. This approach would still consider relationships of influence and calls for explanation, but they would only need to consider them alongside the general facts of the case instead of having to be individually satisfied of the two criteria as under the structural approach.

Under either approach, if the presumption is raised it would be up to the person defending the gift to rebut the presumption.

CONCLUSION

This paper has been by no means a full summary of the Law Commissions proposed reforms to the law surrounding Will Writing, only an examination of some of the key proposals. We would urge Members to read the full report or the official summary by following the links provided below.

The full Law Commission Consultation Paper No 231 and summary can be read by following this link:

  • Simple Usage
    Simple Usage

The consultation is open to responses until 10 November 2017.

 

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Business Lasting Power of Attorney (LPA)

BY: Paul / 0 COMMENTS / CATEGORIES: News

An absolute essential for every Sole Owner, Director or Partner of a business in 2017

As a business owner it is important to consider what might happen to the business if you should be incapacitated by illness or injury, who would take over the running of the business and its financial and property affairs, and what would it mean for your employees’ financial future

Whilst there may be ‘an understanding’ amongst your colleagues of what would happen should illness or injury take you away from the business, in the eyes of the law this isn’t sufficient. Unless you have appointed an attorney, fundamental business operations may not be possible – access to bank accounts may be denied, suppliers won’t get paid, contracts could be compromised or lost, insurance premiums won’t be renewed, and salaries could go unpaid. Without an attorney appointed to take care of the business, the disruption to your company could be catastrophic, and it won’t take long for the impact to be felt.

As a business owner, you matter. You commit time and money to your business and have staff and suppliers who are reliant upon you.

Business owners may have had the foresight to purchase Key Person Insurance, but this will not assist with the practicalities of running the business if that key person is ill or injured and unable to work or take decisions. For that reason, LPAs are frequently being used by prudent business owners to protect their business interests in the event they become incapacitated (it is becoming common for people to make a specific LPA for business purposes and one for personal affairs).

If a person does not make an LPA and loses mental capacity, an application to the Court of Protection is required to access their finances which often is expensive and time-consuming. In a commercial sense, this may also hold-up the running of the business (cheque signing, payment of wages, renewals of insurance etc.).

Worryingly, many financial institutions respond to a business owner’s lack of capacity by calling-in loans and freezing bank accounts. By having an LPA in place for your business interests you can ensure that your company runs smoothly even when you are unavailable.

It is therefore a necessity for any business owner to consider the worst to ensure continuity and to protect hard earned success. A professionally drafted Business LPA is as important to your business as insurance is.

Each type of business must be assessed according to its structure. For sole traders, the owner can execute an LPA to appoint any attorney to act in the event of mental incapacity.

LPAs use in partnerships depends on whether there is a partnership agreement which allows for an attorney to act on behalf of an incapacitated partner. Where no such agreement exists an application to court may be needed to remove a partner who is incapable of adhering to the partnership terms.

For companies, Directors cannot delegate their functions as a Director unless the articles specifically provide otherwise. In many cases the Director will also own shares in the company. Therefore a solution is for the owner of the shares to have an LPA to ensure business continuity by the attorneys who can appoint a new Director in the event of the Donor’s incapacity. The LPA and the articles of association need to work alongside one another.

The benefit of a business LPA is that you decide on who will deal with your affairs on your behalf. You can also place very specific instructions and restrictions upon your attorneys as well as providing guidance on how they should deal with your business affairs.

This can all sound daunting but under the Mental Capacity Act 2005 your attorneys must act in your best interests and follow a Code of Practice, this includes considering any views and beliefs you have expressed in the past. You can also revoke your LPA at any time as long as you have capacity.

As a busy professional it is easy to brush these matters aside but as a business owner you have additional responsibilities to consider and a business LPA can give you, your partners, staff and suppliers the peace of mind that your hard earned success is protected at the worst time.

Contact us for more information 01325324515 or07971957945

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Asset Protection Plan

BY: Paul / 0 COMMENTS / CATEGORIES: Trusts

 

E.M.P SOLUTIONS Home Protection Scheme

Key Facts and Benefits

The Home Protection Scheme

Property ownership is an aspiration for most of us because there are many advantages such as:

Having complete control over your home and the ability to do

     whatever you want with it

The security it provides

Property is generally an appreciating asset

The comfort of knowing that when you are gone, your loved ones

     will get the benefit

Financial difficulties such as not being able to pay creditors, tax problems or bankruptcy

Health issues that mean we need long term care

Family Breakdown

 

We want to make sure that our home is protected for us and for those we want to leave it to

However, life is never certain and all too often personal circumstances can change and things occur that put the home at risk either for us or, for the ones we want to leave it to when we have passed on.

It’s a sad fact that every year 100,000’s of people in the UK lose the homes they have worked so hard for simply because their financial circumstances have changed or, because they need to go into care.

Even if we remain fit, healthy and financially solvent until the end, who can predict what will happen to our home once it has been inherited by our loved ones?

They too could lose the property due to financial pressures or poor health, and the security we hoped it would provide them is gone forever.

The Home Protection Scheme is designed to protect your home or, the equity you have in your home if you have a mortgage, by placing

it into a Protective Trust. Placing your property into a properly drafted Protective Trust would mean that you retain all the benefits of home ownership. Additionally benefits for you and the ones you want to leave your home to could include:

Protection from creditors

Protection from care home fees

Making sure your home passes to those you love exactly as you have planned

 

How you own your home can protect it for you, and the ones you love

There are many benefits to the Home Protection scheme and on the following pages there are details on what is involved in setting up the scheme, how it works and the benefits but, everyone’s circumstances are different and it is essential that you seek advice from a professional and discuss everything with your family or, those you want to inherit your assets.

What Is A Protection Trust?

A Protection Trust is probably one of the most useful and versatile estate planning tools available. They have been used in the UK for hundreds of years and for most of that time, the general perception of what a Trust is used for is the preservation or reassigning of assets for the wealthy with large estates.

The production of a Trust is deemed ‘Reserved Legal Work’. Therefore, has to be completed by either a Solicitor or Barrister and are typically quite expensive to produce.

However, we do not believe that it should be cost prohibitive for anyone to take advantage of such a useful estate planning vehicle and we will produce a Trust for a fraction of what some law firms charge without compromising on quality. In fact, all of our Trusts are produced exclusively by Barristers with extensive knowledge and expertise in this area.

It’s reassuring to know that experienced Barristers have

drafted your estate planning documents

A Protection Trust is a legally created vehicle designed to take over the direct ownership of certain assets which often includes the family home.

A Protection Trust is an alternative to traditional ownership that provides many additional and important estate planning and protective benefits. Whilst, strictly speaking, placing assets into a Trust does mean that ownership is relinquished to the Trust, it certainly does not mean that the control or the benefit of those assets is given up.

With traditional ownership you have complete control over your assets and you can benefit from them as and when you like. Upon death, complete ownership of your assets has to pass to those beneficiaries named in your Will.

Because they are legally either your assets or, those of the beneficiaries named within your Will, they are vulnerable to being used to repay creditors or to fund care home costs.

Creating a Trust and placing your assets within it means that the Trust now owns those assets.

However, as Trustees you retain complete control over those assets and can benefit from them in just the same way as if you had direct ownership.

Because the Trust will survive you, there is no need to transfer ownership of the assets to loved ones. Instead, you transfer the control by making them

Trustees and the benefit by making them Beneficiaries.

As the Trust is designed to survive you and retain ownership of the assets within it, you can plan for how those assets are to benefit loved ones once you have passed on. You don’t have to transfer ownership.

Assets owned by the Trust are considered to be beyond the reach of unsecured creditors and should not be considered when calculating what can be paid towards care home costs.

 

Why set up a Protection Trust?

Estate Planning Advantages

Whilst a Protection Trust does provide significant advantages to you during your lifetime in relation to protecting your assets, for most people, the main reason for setting up a Trust is because they want to make sure that their loved ones receive the maximum benefit from their assets once they have passed on. Below is just a small selection of the Estate Planning Advantages.

Avoiding hefty probate costs

Typically, upon death all our assets are placed into ‘probate’ which is basically a state of suspended animation until such time as the appointed Solicitor or, your bank complete the probate process for which they will make a significant charge to your estate (often between 3% & 5%).

Because your Protection Trust survives you and as long as it has been properly drafted with details of the Trustees /Beneficiaries who replace you upon death, there is no need for probate.

Ensuring that your wishes are fulfilled expediently upon death

As above, those assets placed into a Protection Trust will not be included within the probate process and therefore the beneficiaries will receive the benefit as you have stipulated immediately.

Effective way of dealing with inheritance if the family circumstances are complex

Unlike a Will, a Protection Trust CANNOT be contested. Because with a Protection Trust there is no transfer of ownership of the assets it is far easier for you to ensure that upon your death the benefit of those assets are distributed exactly as you want them to be. This is ideal for families where marriages have broken down or if there are step children or step grandchildren involved.

Ensuring beneficiaries who need help are looked after properly

Many of us have someone that we worry about, or feel we need to ‘look after’. Whether it is physical need or simply that they aren’t always capable of making sensible decisions we worry that simply leaving our assets to them after we have died, they won’t be capable of managing them to provide long term security.

A properly drafted Protection Trust allows you to determine how those individuals you care about receive the benefit of your assets after you have passed on enabling you to plan for their long term security.

Protecting inheritance from beneficiaries creditors

Most of us will want to leave our assets to our children and other loved ones to help them achieve financial security.

If you simply leave your assets in a Will, upon death the value of those assets transfer to whomever you have left them to.

In this current economic climate it may be the case that the people you want to inherit your assets may well be in financial difficulty and therefore their inheritance could be seized by their creditors.

Because the Trust survives after your death your assets remain in the trust and are therefore beyond the reach of the creditors of the beneficiary although, the beneficiary can still receive the benefit.

Why set up a Protection Trust?

Protection Advantages

The motivation for placing assets within a Trust should always be for Estate Planning reasons such as those detailed on the previous page.

However, your assets could benefit from a far greater level of protection if they were in a Trust as opposed to being owned in the traditional sense.

Whilst the protection advantages are extensive, it has to be understood that you should not place assets within a Trust with the sole motivation of simply depriving anyone who might have a legal claim on them.

Never the less, below are just some of the protection advantages afforded to assets placed into a Trust for Estate Planning reasons:

Protection against care home fees

The days of our government looking after us from the cradle to the grave are long gone and we are now expected to contribute to the costs incurred in caring for us in our twilight years.

Care home fees are not cheap. Care can cost from between £2000 and £5000+ per month and your local authority will be expecting you to contribute towards these costs.

They will look at every asset you own, including your property, and if these total more than £14,000 then your local authority will expect you to make some contribution towards the cost of your care. In fact, if your assets are above £23,000 then they will expect you to meet ALL of those costs and if this means selling the family home, then so be it.

Placing your assets in a properly drafted Protection Trust means that they should no longer be part of the Local Authority’s evaluation, safeguarding them for your family.

An option that some people have taken in the past is to simply transfer their property to their children. However, the aggressive nature of Local Authorities often results in such a transfer being reversed or, a charging order being granted.

Because a Protective Trust is a legal entity in its own right, the Local Authorities can not apply the same rules as if the property had been gifted to a relative.

However, critical to the success of the Protective Trust will be the length of time the trust has been in place and whether or not, entry into a care home was even an issue when it was formed.

Current legal opinion estimates the Trust should be in place for at least 12 months before going into care. However, the longer the Trust has been in place the better and it is advisable to consider at least an18 month period to bemire appropriate.

Protection against unsecured creditors

None of us can see what is round the corner and recent years have shown us that changes in general economic circumstances can overnight put thousands of previously solvent people into financial difficulty.

Unsecured creditors can seek what is called a ‘charging order’ against a borrowers home and potentially force the sale if the borrower does not maintain the contractual payments.

If the property has previously been placed into a properly drafted Protection Trust, the creditor may still be able to obtain a ‘charging order’ on the borrower’s property but, it will sit below the Trust itself and the interests of the beneficiaries. In short the creditor will not be able to force the sale of the home nor, will they be able to lay claim tony of the asset value.

Protection Advantages (continued)

Protection against Bankruptcy

If the trust has been set up for less than 2 years and you are made bankrupt the Official Receiver will be able to include the property in the bankruptcy as an asset (ss.339-342 of the Insolvency Act 1986).

After 2 years, the property does not need to be included if it can be shown that when the trust was set up the personas solvent.

Protection against the creditors of someone else for whom you have stood as guarantor

If you have stood guarantor on a loan or mortgage for one of your children (or anyone else) and they default on that loan or mortgage, a properly drafted Protective Trust will protect your assets.

Protection against business creditors

If a sole traders business fails or, if they are not able to meet their business credit commitments as and when they fall due, a properly drafted Protection Trust can protect personal assets keeping them beyond the reach of creditors.

However, the Trust must have been produced within a timely fashion i.e.: not at the time when the business fails and not simply to deprive creditors.

What can be included?

Quite literally any assets including real property, cash investments and

life insurance policies etc can be placed in a Protection Trust.

However an individual can only place up to £325,000 (£650,000 per couple) worth of assets into a Trust before there is any tax liability. Anything above £325,000 per person will attract a tax liability.

Whilst there is no limit to the value of the assets that can be placed into a Protective Trust, the reasons for exceeding £325,000 per person would have to outweigh the tax liability and specialist tax advice should be obtained. The use of multiple Trusts should be considered for those with assets exceeding current tax thresholds.

Retaining control

Placing a property or any other asset into a Protection Trust does not mean that you relinquish any control over those assets.

In the case of a property, you can still sell the property and decide whether to, leave the proceeds within the Trust or remove them. You can use the proceeds to buy another property and place that in the Trust or remove it.

As a Trustee you can also ‘unwind’ the Trust at anytime if it no longer suits your requirements.

Why don’t more people have Protection Trusts?

One simple answer is that despite Trusts having been around for hundreds of years, how they work and how useful they are isn’t widely known or understood.

Also, because the production of a Trust is reserved legal work they have always been relatively expensive to produce and therefore the preserve of the wealthy with significant assets. In these circles, the use of Trusts has always been very common.

Our Trusts are designed to be affordable to all so that everyone can benefit from what is probably the most versatile and useful estate planning tool.

Setting up a Protection Trust

When considering setting up a Trust to hold your property and other assets

there are four main stages to consider.

Advice

Individual circumstances can vary a great deal and there is no way of telling

whether or not a Protection Trust or, any other form of estate planning is

right for you without carrying out a complete review of your affairs.

You should obtain good advice from a professional Estate Planer or a qualified and experienced Financial Advisor who should make a thorough evaluation of your circumstances before making any recommendations.

Consult your family and those you intend to benefit from your estate

If, after receiving good advice you are considering putting your assets into Trust, you should discuss your decision with family members and or, trusted friends and anyone that you want to be either a Trustee or Beneficiary of the Trust.

Be confident that your Protection Trust has been drafted properly and is tailor made

As mentioned earlier, the drafting of a Trust is considered to be ‘Reserved Legal Work’ meaning that it can only be done by a Solicitor or Barrister.

You should make sure that the Solicitor or, Barrister is suitably experienced in the drafting of Trust documents and what is required to enact them. They should also carry suitable levels of professional indemnity insurance so that you can be compensated if their drafting is flawed and the Trust doesn’t perform as it was intended.

Make sure your wishes are honoured without burdening loved ones

Once your Trust is drafted and in place, it is possible and often advisable, to appoint a professional Trustee. This person or organisation should NOT be a beneficiary of the Trust and their powers should be limited to ensuring that your wishes and the rules you put in place when the Trust was set up are respected and honoured.

 

Who would produce your Trust Documents?

All of our Trust documents are produced by the highly experienced   Barristers

Summary

When it comes to protecting our most valuable assets including our home and considering how we want those assets to be distributed once we have passed on, it would be remiss to say the least, not to consider the setting up of a Protection Trust.

A Protection Trust is one of the most flexible, useful and protective Estate Planning tools available. No matter how old you are or how much there is in your estate, it is often the ideal way to ensure that what you have worked so hard to acquire is removed from danger during your lifetime whilst also providing the maximum benefit and security to those you love after you are gone.

Headline benefits

Avoids hefty probate costs

Ensures that your wishes are fulfilled expediently

upon death

Provides an effective way of dealing with inheritance

if the family circumstances are complex

Ensuring beneficiaries who need help are looked

after properly

Protection against care home fees

Protection against unsecured creditors

Protection against Bankruptcy

Protects inheritance from beneficiaries creditors

Protection against the creditors of someone else for

whom you have stood as guarantor

Protection against business creditors

Frequently Asked Questions

Q: Who would benefit from a Protection Trust?

A: A Protection Trust is designed for singles or couples who own their own home or have a reasonable level of savings/investments.

Q: Who will be the beneficiaries of my Trust

A: It is up to you as to whom the beneficiaries are. During your lifetime you can either nominate yourself as a beneficiary or, make sure that you have what is termed a ‘lifetime interest’. It is also up to you how the beneficiaries receive their inheritance. You can place any requirements or conditions that you require. This way you can safeguard your bequests from being squandered or lost.

Q: What happens if one of us dies?

A: If you have a joint Trust everything remains exactly the same. The survivor can keep the benefits of the trust and keep control over the trustees. Basically, it is up to you to set the rules at the point when the Trust is being set up.

Q: Can I sell my house if it is in a Trust?

A: Yes, as Trustees you can sell any asset within the Trust and decide what to do with the proceeds of the sale. For example, you could take the funds out of the Trust or, leave them in. You could use the Trust to buy a new home that would then sit within the Trust. Basically, it’s up to you as Trustees.

Q: What type of assets can I place in a Trust?

A: It is usual to put property or, properties into a Trust along with other savings, investments and life insurance policies. However, virtually all tangible assets can be put into a Protection Trust.

Q: Can I add other assets at a later date?

A: Yes you can.

Q: Can I unwind a Trust if I change my mind?

A: Yes, if your circumstances change or you simply decide that you no longer want to have your assets in a Trust, as Trustees you can unwind the Trust and release the assets back into your direct ownership.

Q: What is ‘deliberate depravation of capital’?

A: When a local authority conducts a means test financial assessment, it will check when assets were placed in a trust to establish whether they were placed there solely for the purpose of avoiding being included in the assessment. This is known as ‘deliberate deprivation of capital’.

Q: How can I avoid being accused of ‘deliberate depravation of capital’?

A: The best way to avoid it is to place your assets into a Trust when the thought of having to enter a care home anytime in the near future is simply not an issue.

If those entering assets into the Trust are a couple, then the family home carries a ‘disregard’ status if one of the couple has to enter into care.

There is also passage of time. This means the time between when the Trust was set up and when care financial assessment became an issue. This needs to be of such a length that a local authority would be unable to prove deliberate deprivation and whilst no set time period is given, an ideal minimum would need to be at least 18 months. It is worth noting that a local authority will be allowed to inspect all medical and financial records when conducting their assessment.

 

 

 

 

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WHEN A BENEFICIARY HAS A SUBSTANCE ABUSE

BY: Paul / 0 COMMENTS / CATEGORIES: Will Writing

Estate Planning Conundrum: What to do when a beneficiary has a substance abuse problem

 

Many parents have raised the issue of what to do when a child or grandchild struggles with substance abuse. With the recent death of Whitney Houston and her connection to substance abuse, it reminds me of what this means during the estate planning process. These parents are heartbroken and need guidance on how to address this difficult situation in their estate planning documents. Substance abuse – whether it’s alcohol, prescription drugs, or illegal narcotics – affects many of the families we advise. As a result, we developed a list of questions for families to consider when designing their estate plan:

  1. Has the beneficiary ever been diagnosed with a mental illness?
  2. Is the beneficiary having a particularly hard time – is divorce on the horizon? Has he lost his business? Does he gamble?
  3. What is his relationship with other family members?
  4. Who does he trust?
  5. Who is giving him money?
  6. Is he eligible for government assistance?
  7. Who is paying his health insurance?
  8. Is he employed? For how long? What types of jobs?
  9. Has he ever been treated for his addiction?
  10. Is he a member of Alcoholics Anonymous or a similar organisation?
  11. Do these issues run in the family?
  12. Has there been a family intervention?
  13. Is he open to counselling? Has this topic been addressed?
  14. Where is he living? Can he live alone?

I have noticed that substance abuse often masks other underlying mental health issues, including undiagnosed or untreated schizophrenia, bipolar disorder, and depression. That these issues are often part of a larger family pattern makes having the discussion much more difficult, but much more essential.

Families in Conflict An addicted child may have already taken a significant emotional, physical, and financial toll on the entire family. Parents who find it difficult to handle this child become increasingly disturbed when they consider who would step in if they are unable or unavailable. This helplessness often leads to anger, frustration, and conflict. One parent may want to cut off the beneficiary while the other parent cannot consider doing so. One parent may want to kick the child out of the home, while the other parent believes that doing so would make matters worse. These conflicts add stress to their marriage and the family at large. Grandparents may have different opinions than the parents. Siblings may already be resentful of their addicted sister or brother. In many families, the troubled child has already received significant emotional and financial assistance. His troubles have already taken centre stage at the dinner table. His presence in the home and attitude toward the family may have already created constant disruption. Estate Planning Tools and Options As complex and emotional as these issues are, families must address them. And they will welcome having an impartial, yet compassionate adviser to provide guidance, suggestions, and choices. One planning tool for parents to immediately consider is for that child to designate them as the agent under his health care proxy and his attorney in fact under the durable power of attorney. Without these documents, HIPPA will prohibit the parents from being involved with his treatment. Also, these documents give parents legal access to his health and financial records, which could be extremely important if it becomes necessary to apply for government benefits. Inevitably, an estate planning discussion will include disinheritance. In my experience, this is a subject frequently discussed and rarely implemented. No matter how angry and frustrated they are, parents still want to provide some sort of safety net for their child. This pressure to disinherit the troubled child may come from the sense that he has already taken more than his fair share of the family’s resources, possibly at the expense of the other, more responsible children. As the family’s adviser, however, you should ask the parents:

  • If you are not here, how will the child be cared for with no existing financial resources?
  • Who will be responsible?
  • Who will he call?
  • Will disinheriting him place a financial burden on your other children, or will they be able to walk away?

Establishing a Trust Rather than disinheriting him, a common solution is to establish a trust that includes him as a permissible beneficiary – or is only for his benefit during his lifetime. The hard decision, however, is who will serve as trustee after both parents die. Parents are understandably reluctant to place that burden on their other children or on other relatives. If there are significant assets, then choosing a corporate trustee is the simple choice. The other children or trusted friends or advisers can then have the right to remove or replace that trustee during the trust duration. If there are not sufficient assets to warrant a corporate trustee, then the parents must identify friends or trusted advisers – who should be paid for their services. The trustee should review the trust document to ensure that he has the right to resign from his office, and understand the mechanism for subsequent trustee appointments. The document should provide the trustee with the authority to expend funds for purposes such as counselling, detectives, drug testing, and private security. Trust

Terms and Provisions  After deciding on the line of succession and identifying who will operate the trust, parents need to focus on the various purposes for which the trustee may or may not distribute income and/or principal from the trust to the beneficiary. If the beneficiary is likely to require government assistance, then the terms of the trust must contemplate that. The trust document may also give the trustee authority to withhold payments if deemed advisable. This is often preferable to asking that trustee to determine whether a beneficiary is drug-free. Those suffering from substance abuse can be clever, and making such a determination is tricky. Many parents have a sense of shame or denial, and may rightly choose not to make these troubles public, or put them in a trust document that others can access. I encourage parents to write an annual side letter to the trustee that describes their observations and offers details that they are reluctant to share while living. This letter could be placed in a sealed envelope, kept with the original estate planning documents, and updated/revised as circumstances change. It can be comforting to the trustee to understand more about the parents’ goals and objectives from their own voice. Planning for the beneficiary with a substance abuse issue is complex and can have consequences that affect the entire family. Remind parents that life is a movie, not a snapshot. A plan created now should be good enough to handle today’s circumstances, yet flexible enough to contemplate the unknown. Encourage parents who are dealing with this difficult situation to revisit their plan every few years as circumstances change and evolve.

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