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Funeral Costs Rise

BY: Paul / 0 COMMENTS / CATEGORIES: News

Funeral Costs Increased By 3.4% Last Year

The average cost of a funeral has increased by 3.4% to £4,417 since last year. 

The increase is forcing a lot more grieving families into financial difficulties according to the latest Cost of Dying Report by SunLife. 

12.5% of all families faced the unenviable prospect of finding the money to pay for the funeral costs of their loved ones. 

The report claims that the final celebrations of a loved ones life is contributing to debt with over a fifth of families borrowing money from friends and family members to cover funeral costs. 

Additionally, a quarter of respondents admitted to paying for the funeral on their credit cards or through loans. 

It seems as though regions vary greatly with Londoners facing an average funeral bill of £5,963, a staggering 35% more than the national average. 

Whilst the average funeral increased by 3.4% in the last year, residents of the Midlands and Wales faced the largest annual funeral cost rises of 9.6% and 9.4% respectively. 

Last year, Royal London published a National Funeral Cost Index. It found that the total amount of funeral debt in the UK has risen to £147m, up 12% from last year. 

It estimated around 74,000 bereaved families who have struggled to cover the cost of a funeral in the past year. 27% of those who struggled said they went into debt from credit cards, loans or overdrafts. 

20% said they borrowed money from family and friends, with 12% saying they chose a cheaper funeral. The index also found that people on lower incomes are spending much more of their income on a funeral, meaning they’re left worse off than those on higher incomes. 

What are the alternatives? 

It is only natural to want to give your loved one the ultimate send off. For many, the consensus has been a service, usually in a crematorium followed by burial or cremation. 

Overall, 23% of all funerals involved a burial service with 77% ending in cremation. 

However, with costs rising and more families spiralling into debt, should we start to stray from the traditional and often expensive funeral pathways? 

The report found that the average cost of a basic cremation, including a service was £3,858 once a coffin, service space and funeral car are factored in. 

However, direct cremations, whereby the deceased is cremated without a service, fell in price by 5% to £1,626. Loved ones would then have the option to hold a memorial service once the ashes are returned. 

Almost half (44%) of all respondents were unaware of this option with 42% happy for this option to be embraced for their own funeral if it meant their loved ones were able to avoid financial stress.  

A fifth would also consider this option for their loved ones as it meant they were able to organise original and bespoke memorial services.   

Ian Atkinson, Marketing Director at SunLife, commented:  

“Some people do not like the thought of not having a service in a crematorium, thinking perhaps it is not a ‘proper’ send-off, but this view is changing more and more. We may well start to see more and more people having direct cremations in the future as people realise how much cheaper they are and how they’re able to have the complete flexibility to have a personal service of their own wherever they wish.  

“The cost of direct cremations is also falling, and the main reasons could be the rise in competition and families looking for a good low-cost funeral option. Funeral directors are responding to changes in consumer demand, with more customers shopping around and looking for a good lower-cost option.” 

How damaging is the cost of a traditional funeral to already grieving families?

  • by Martin Parrin
  • Jan 10, 2020

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A Lasting Power of Attorney – Commonly Asked Questions

BY: Paul / 0 COMMENTS / CATEGORIES: News

With 12.5 million people in the UK over the age of 65 and just under 1 million Lasting Powers of Attorney registered with the Court of Protection, it’s hard to believe that despite the number of people being affected by dementia or some other illness which affects their capacity, measures aren’t being put in place to protect loved ones.

A Lasting Power of Attorney is a legal document which allows a person (called the donor) to appoint someone they know and trust to make decisions on their behalf should they become unable to do so in the future. This person is called an attorney. Attorneys must always act in the best interest of the donor.

There are 2 types of LPA: –

  • Health and Welfare
  • Property and Financial Affairs

Let’s look at what each LPA can do and what decisions it covers:

Health and Welfare

  • Day to day decisions such as exercise, dietary requirements
  • Medical care
  • Life sustaining treatment
  • Relocation into a care home or sheltered accommodation

A Health and Welfare LPA can only be used once it has been registered with the Office of Public Guardian (OPG) and when the donor loses mental capacity.

Property and Financial Affairs

  • Managing bank accounts
  • Paying bills
  • Collecting income and benefits
  • Making decisions with regards to the home
  • Selling the home
  • Managing investments

A Property and Financial Affairs LPA can be used as soon as it is registered with the OPG. The donor can restrict the rights the attorneys have under the “instructions” section of the LPA form.

Appointing Attorneys

Normally 1-4 attorneys can be appointed but it is important for the donor to ensure the attorneys are someone they know and trust to act in their best interests. Attorneys can act either: –

  • Jointly (attorneys must agree unanimously on every decision);
  • Jointly and severally (attorneys can make decisions on their own or together); or
  • Jointly for some and jointly and severally for other decisions (attorneys must agree unanimously on some decisions but can make others on their own).

Capacity

Before an LPA is made, it is imperative that the donor is over 18 and has mental capacity. This means they must understand:

  • What an LPA is
  • Who they want to make it?
  • Who they are appointing as attorney?
  • How they have decided the attorneys; and
  • That they understand what powers the attorney will have.

If the donor cannot decide for himself in relation to the matter due to an impairment of or disturbance in the functioning of his mind or brain, such as late set dementia, it is likely they will not have the required capacity.

Essentially, the donor should be assessed on whether they have the ability to make a particular decision at a particular time. If unsure, a GP or independent mental capacity advocate can assess the donor’s capacity.

Registration

Once the forms have been submitted to the OPG, they can take up to 16 weeks to be registered.

FAQ

Can I do an LPA if my father has lost capacity?

No. An LPA can only be made by someone who has mental capacity. If a person loses mental capacity and has no LPA in place, an application would need to be made to the Court of Protection who will appoint a deputy to act in the donor’s best interests (this is known as Deputyship Order). Anyone over the age of 18 can apply to the Court of Protection to be your Deputy to make financial decisions on the donor’s behalf. This can be a lengthy (normally 6-month timeframe) and very expensive process with the added risk that the application may be refused by the OPG or that no provision will be made for Health and Welfare.

Do I have to register my LPA straight away?

To be effective, an LPA must be registered with the Office of the Public Guardian. There is a registration fee of £82 per document and is means tested so if the donor is on a low income or benefits, they may be eligible for remission of those fees.

It is better to have the LPA registered as soon as possible. The principle reason for this is that if the LPA is registered later on or where the donor starts to lose capacity, if the form is returned by the OPG for any reason (given the long turnaround time), the donor may no longer have capacity and therefore cannot sign the form. This will mean the LPA cannot be put in place for the donor anymore and an application for deputyship will need to be made. On top of that, imagine a loved one needs to go into a care home as their health has deteriorated but you are unable to access their funds to pay for care home fees until the OPG approve. Is the added stress worth it?

Once my LPA has been registered, I can’t change it.

Wrong. An LPA that has been registered can be revoked at any time, providing the donor still has mental capacity. This does mean a new LPA will need to be made and a further £82 registration fee paid.

Can I get an LPA for my business?

Yes. you can use the Property and Financial LPA to ensure attorneys can continue to make decisions about the continuity of your business, paying staff, entering into contracts etc. This means if you are a business owner you could have two Property & Financial Affairs LPAs, one dealing with your personal finances and the other appointing attorneys to deal with your business interests.

Capacity can be lost at any time and could be due to either an accident, a stroke or a deteriorating condition so please don’t wait until it’s too late.

You have read the above on why an LPA may not be necessary which this article explores further.

“I don’t need an LPA because my next of kin can make important decisions on my behalf”

Not true. No-one can act on your behalf or make decisions on your behalf if they have not been legally authorised to do so.

“My Will has appointed executors, so they’ll be able to make decisions on my behalf.”

Not true. A Will is entirely separate to an LPA. Executors appointed in a Will only have the power or authority to distribute your estate as requested and in line with your Will, on death. They have no authority to make decisions on your behalf during your lifetime.

“I don’t need an LPA until I become elderly and of ill health”

Not true. An LPA can be made by anyone over the age or 18 who has full mental capacity. Someone may lose capacity or no longer be able to make decisions due to an accident, being in a coma or other mental illness.

The sooner you put an LPA in place the better, as you know provisions will have been put in place in the event the unthinkable happens. If you wait and, in that time, lose capacity, it will be too late to get an LPA and your loved ones will need to apply for a Deputyship Order from the Court of Protection. This will not only take a long time but also a costly process.

“Once my health and welfare LPA is registered, it means someone else can make decisions for me and I don’t want that while I have capacity”

Not true. A health and welfare LPA only comes into effect when the donor loses capacity even if the LPA has been registered.

“Getting an LPA is expensive”

The cost of registering an LPA is £82 per document. In comparison, if you fail to make an LPA and lose capacity, your family will be left with no other option but to apply for a Deputyship Order, this will cost significantly more.

“Me and my partner have joint bank accounts, so we don’t need LPA’s”

Not true. This is always the most alarming to couples when they are told that even if they have a joint bank account, this does not mean the partner will be able to automatically access funds to pay for bills, mortgage or general expenses. If the spouse was to lose capacity, the bank have the ability to remove access and freeze the account until they receive a copy of the registered LPA which is extremely stressful for the spouse.

From THE BRITISH BANKING ASSOCIATION

What happens if the other joint account holder becomes mentally incapable? In England and Wales, if one party to the joint account loses capacity to operate their account, banks and building societies will use their discretion to determine whether or not to temporarily restrict the operation of the account to essential transactions only (for example, living expenses and medical/ residential care bills for both parties) until a deputy has been appointed or a power of attorney registered. In Scotland, you can continue to run the account as long as the original account mandate was either-to-sign and there is not a court order preventing the account from being used.

If the other joint account holder appointed you as attorney, under a ‘lasting power of attorney’ (in England and Wales) or a ‘continuing power of attorney’ (in Scotland), you can register the power of attorney and run the joint account.

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Dementia And The Benefits Of A Lasting Power of Attorney

BY: Paul / 0 COMMENTS / CATEGORIES: News


What is an Lasting Power of Attorney (LPA)?
An LPA covers decisions about your financial affairs, or your health and care. It comes in effect if you lose mental capacity, or if you no longer want to make decisions for yourself.
You would set up an LPA if you want to make sure you’re covered in the future.
There are two types of LPA:
LPA for financial decisions
LPA for health and care decisions.
An LPA for financial decisions can be used while you still have mental capacity or you can state that you only want it to come into force if you lose capacity.
An LPA for financial decisions can cover things such as:
Buying and selling property
Paying the mortgage
Investing money
Paying bills
Arranging repairs to a property
An LPA for health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:
Where you should live
Your medical care
What you should eat
Who you should have contact with
What kind of social activities you should take part in
Unfortunately, many people diagnosed with dementia will eventually reach a point when they can no longer make decisions for themselves. When a person lacks ‘mental capacity’, it’s common for someone else, for instance a family member, to make decisions on their behalf.
Who can make an LPA?
Anyone who is over the age of 18 and has the mental capacity to do so can make an LPA. Once a person has lost mental capacity, they will not be able to appoint an LPA.
Why would someone need an LPA?
For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. A lasting power of attorney is a legal document appointing one, or more, trusted people to be their attorney(s). An attorney is a person responsible for making decisions on the person’s behalf.

People in a civil partnership or marriage might assume their partner can deal with their finances and make decisions about their healthcare should they lose the ability to do so, but this is not necessarily the case. If someone has not drawn up an LPA when they are assessed to have lost capacity, and their partner or friend wants to make decisions on their behalf, they may have to apply to the Court of Protection to be appointed as the person’s Deputy. This can be a long, complex and expensive process.
Making the right choice
If you’re considering making a LPA, here are five reasons why it might be a good move for you and your family and friends.
Choice
You can choose people you trust to manage your affairs and to make decisions on your behalf, should you become unable to do so. You can choose who acts for you and how they make decisions.
Legality
A Lasting Power of Attorney is a legal document which authorises your specified people to make decisions on your behalf. If you provide your bank cards to trusted friends or relatives, any permission you have given to them will be automatically revoked if you lose capacity in which case, they are technically committing fraud.
Control
It is important to note that you do not lose any control by making an LPA. Indeed, a properly drafted LPA can contain details of your wishes and instructions for your Attorneys to follow, allowing you to retain control even after incapacity.
Reassurance
If you’re unable to make a decision for yourself in the future, the person you choose will be able to make decisions for you, rather than a stranger or someone you do not trust.
Plan Ahead
Making an LPA helps start conversations with your family about what you want to happen in the future.
Other ways an LPA is beneficial
An LPA isn’t just put in place due to mental illnesses, it’s also very important to have as a security for anything sudden that can happen. “It will never happen to me”, is what a lot of us think. But sadly, accidents do happen all of a sudden and out of the blue. And in a heartbeat, lives can be turned upside down.
In the UK, every 90 seconds someone is admitted into hospital with a brain injury, whether it be from an accident or contact sport being examples of what can go wrong.
If such a life situation was to happen and an LPA wasn’t a document you have, then family or friends wouldn’t be able to assist or take control of finances or welfare decisions. You would have to apply to the Court of Protection to grant you permission which is a costly and lengthy process.
To apply to become a deputy there’s a fee of £365 that you are required to send with your application. If the court decides that your case needs a hearing then there’s an additional charge of £485. These payments are only the start of charges that will be occurred should you need to apply to the Court of Protection.
Having an LPA not only eliminates occurring the charges and the stress, it also comes into place instantly. Once the LPA is submitted, it takes up to ten weeks to register. The power will be effective as soon as the LPA is registered, so the attorney will be able to start making decisions straight away, unless they specify otherwise on the application. When applying to the Court of Protection, the court aim to issue an order within 21 weeks of the application being stamped. It can take 5-6 weeks to get to this point, depending upon how long the initial steps take. Please note, an LPA must be put in place BEFORE the person loses their mental capacity.
Summary
You probably wouldn’t want to die without a will in place, especially if you own property, have substantial cash savings, or have a partner or dependants. But what if something happens to you that does not kill you, but leaves you incapable of communicating your wishes to those closest to you.
It’s an uncomfortable thought but it’s crucial to consider it in good health and make the sensible decision. An LPA is probably the single best way to make sure that your interests are protected from the moment you are incapacitated until your death, after which your will can distribute your estate in the usual way.

by Bhupinder Mann, Associate at Balfort LegalSep 23, 2019

 

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2000 Homes Per Month Sold To Fund Social Care

BY: Paul / 0 COMMENTS / CATEGORIES: News, Trusts

Almost 2,000 Homes Per Month Sold To Fund Social Care

On average, 1,760 older homeowners per month or 406 older homeowners every week are being forced to sell their homes to fund their social care costs.

According to new research by Independent Age, 21,120 homes were sold in 2018 with the funds being used to pay for the vital care all people should be entitled to as we age.

In comparison, only 11,800 homes were sold to fund similar care in 2000. This represents a 77% increase in family homes being sold to fund the social care crisis in the past 19 years.

In 1999, the Royal Commission made recommendations and suggestions to make care free at the point of use. However, subsequent Labour and Conservative Government’s have failed to solve the problem with recent issues widening as the number of elderly, in need of social care, increased whilst services and funding was cut in real terms.

Since 1999, Independent Age estimated that over 330,000 elderly people have sold their homes, forcing them to move into unfamiliar surroundings before they die, to help fund their care.

Independent Age has also questioned the success of the Government’s Deferred Payment Agreements (DPA) which enabled social care users to defer payments until after they died.

Whilst DPAs were designed to enable more social care users to remain in their homes, the roll out of this scheme has been sporadic and inconsistent.

According to a freedom of information request made by the organisation in July, of the 93 local authorities who responded, less than a third (29)  had accepted all DPA applications.

Worryingly, 7 local authorities had failed to set up a DPA process for the elderly constituents to use whilst 3 local authorities had rejected all DPA applications it had received.

As the social care sector awaits a definitive solution to help alleviate a crisis on the verge of imploding, it is imperative that all social care users are offered the same treatment and the same opportunity to remain in their homes for as long as possible.

Morgan Vine, Campaigns Manager at Independent Age, said: “Our findings show exactly why free personal care is so badly needed.

“Even arranging DPAs – a safety net to prevent people having to sell their homes within their lifetime – is proving to be a postcode lottery and doesn’t address the unacceptable situation where people are still required to spend a catastrophic amount on their care.

“Our Prime Minister has announced his intention to fix the social care system, and it’s crucial that free personal care is part of that solution. Free personal care is an affordable option for the country and is popular with people of all generations.”

  • by Martin Parrin
  • Sep 25, 2019

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Why Establishing Testamentary Capacity Is Not a Tick-Box Exercise

BY: Paul / 0 COMMENTS / CATEGORIES: News

One of the many challenges for legal practitioners specialising in Will drafting is establishing the testamentary capacity of the Testator.  While in some cases, the presence or absence of sufficient mental capacity may be clear, in others, there may be some uncertainty, necessitating a more comprehensive process to reach a consensus.  In the case of James v James [2018] EWHC 43 (Ch); [2018] C.O.P.L.R. 147; [2018] 1 WLUK 252 (Ch D (Bristol)) the High Court was asked to make a ruling on a challenge to a Will based on lack of testamentary capacity, and also outline the factors law practitioners should consider when making a capacity assessment at the time of Will drafting.

James v James (2018)

James v James involved the Will of a man who died in August 2012 at the age of 81.  The Testator had been a successful businessman with a farming and haulage operation in Dorset.  He had been reluctant to make commitments to his family regarding his inheritance until later in his life after his cognitive wellbeing had been in decline for some time.

The Claimant, S, was one of the Testators three children.  In 2007, some of the plots of land owned by the Testator were transferred to one of his daughters, and after the family farming partnership was dissolved, the claimant received a farm, £200,000, the haulage business, vehicles, and a license to use one of the plots, ‘Pennymore’ from which to operate the haulage business.  S, however, had been led to believe he would inherit ‘Pennymore’, leading him to challenge the Will on the grounds of his father’s lack of testamentary capacity.

It was stated that the Testator had not been “as formidable as he had once been” from approximately 2004 and had been diagnosed with “moderate dementia with frontal lobe impairment” in 2011.  The Will had been signed in September 2010, hence close to the time at which the Claimant had been assessed as unable to make decisions “about his health care, where he lives or his finances”.  The High Court held that the common law test for assessing retrospective capacity should be the one set out in Banks v Goodfellow (1870) (Banks), rather than the statutory test set out in the Mental Capacity Act 2005.  Applying Banks, the Testator, should have understood:

  • the nature of entering into the will and its effect;
  • the extent of the property of which he was disposing; and
  • claims to which he ought to give effect

In addition, Banks requires the Testator have “no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.

The Court held the Testator did have the capacity to enter into the Will.

This case is significant as it underpins the continued importance of Banks as the sole test for judging Will-making capacity in retrospect, and despite being a case from 1870, has not been superseded by the more recent Mental Capacity Act 2005, which contains a new legal provision for the assessment of mental capacity.

Assessing testamentary capacity at the time of Will writing

The importance of verifying the mental capacity of a Testator should never be underestimated.  Ultimately, by undertaking this process in a clear and concise manner, contentious probate can be avoided, saving cost, time, and familial discord on behalf of clients and their beneficiaries in the future.

As we established above, the Banks test requires the Testator to understand the Will itself, the extent of their assets and the claims upon them.  In addition, a law practitioner can further assess testamentary capacity in several ways:

If the Testator is elderly or infirm at the time of Will writing, the following steps should be considered:

  • Obtain contemporaneous medical opinion confirming testamentary capacity
  • Asking a medical practitioner to witness the Will
  • In the absence of medical opinion, explain to the Testator that this may heighten the possibility of their Will being challenged successfully on the grounds of lack of testamentary capacity. Ensure they confirm they wish to proceed and make clear notes of the guidance provided and the decisions made by the Testator and attach these records to the file.

If a medical opinion is needed, it is important to request the assistance of a health practitioner with the skills to assess capacity, to avoid the risk of their competence to make this assessment being questioned in a later claim.  The client’s GP may therefore not be the best person to make the assessment.  It is also essential that the time between the medical opinion being received and the Will being signed be minimised, to avoid any suggestion that mental capacity declined in the intervening period.  When instructing the medical expert, subject to your client’s consent, it is also recommended to provide a summary of their proposed testamentary wishes.

If there is uncertainty regarding the mental capacity of your client (i.e. you have doubts but cannot be sure), it may not be in the best interests of the client to draft the Will.  Should your client still wish to proceed in light of the risks that the Will may be later deemed invalid, you should record all of the grounds for doubting capacity, that this has been explained to your client, and the reasons they still wish to proceed.

In summary

Given the rise in Will disputes, it is even more essential that law practitioners specialising in Will drafting make no assumptions regarding the cognitive capacity of clients.  Proving testamentary capacity is more than a tick-box exercise; rather it is one that requires that Solicitors and Will writers take the time to get to know their clients and to notice the subtle signs that their capacity may be diminished.  By being open and transparent about the importance of this aspect of ensuring Will validity, you can ask questions and seek further information to help you make a determination.  And don’t assume only those in their later years may lack testamentary capacity.  A client who has suffered a head injury, perhaps as a result of a road traffic accident, or fall, may appear young, physically well, and alert, but maybe suffering impaired cognition (e.g. memory or logical reasoning).  By broadening our view of what impaired mental capacity looks like, we can ensure the validity of the Wills we draft is not questioned at a later date.

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Advising Expats On The Importance Of Making A Will

BY: Paul / 0 COMMENTS / CATEGORIES: News, Will Writing

Advising Expats On The Importance Of Making A Will

To quote Scarlett O’Hara in Gone with the Wind – “death, taxes, and childbirth, there’s never a convenient time for any of them”.

When it comes to the Grim Reaper, if he comes for your client whilst they are living in a foreign country, he is not bothered about whether they have organised their affairs or not. And few situations are messier than dealing with the fall-out from someone who is domiciled abroad and dies intestate.

An estimated 5.5  million British people live overseas. According to the data, over 1.5 million reside down under (Australia and New Zealand), 761,000 in Spain, 1.2 million in North America, 240,000 living in Dubai, and 212,000 in South Africa.

For succession purposes, where a matter involves more than one legal system it is necessary to apply the conflict of laws (also referred to as private international law (PIL)) rules that determine which law of succession applies. Where the PIL rules of one jurisdiction conflict with the PIL rules of another jurisdiction, it is necessary to determine which jurisdiction can decide the matter.

Fortunately, since 17 August 2015, the rules surrounding dying intestate within the European Union have been simplified. If someone dies in an EU Member State without a Will, the rules of intestacy will be the rules of the country in which they were habitually resident as at the date of their death.

The concept of domicile

The country in which a person is domiciled refers to the nation with which they have the closest ties. A person’s domicile of origin is typically their father’s domicile as at their date of birth.   One can choose to be domiciled in a different country from that where they were born; however, a person can only be domiciled in one country at a time. To establish whether a person has changed their domicile, consideration must be given to whether they have left their domicile of origin and settled in their country of choice and whether that move is permanent.

Conceptually, this may not be difficult. But take the increasingly common case of a mixed-nationality couple, who, once their children have grown up, decide to divide their time between two jurisdictions, e.g. Australia and France; this may continue for many years until one dies without a Will. In such circumstances, establishing which domicile applies is far from straightforward .

The law of intestacy in different jurisdictions

Once domicile or habitual residence is established, the intestacy laws of that country will apply. What many British migrants fail to realise is that other countries’ laws often differ substantially from that of England and Wales.

Australia

Each state in Australia has its own intestacy laws. For example, if the deceased dies in Perth, Western Australia, allocation of the estate is governed by the Administration Act 1903 (WA). Division will depend on the value of the estate and the type and number of potential beneficiaries. Unlike English intestacy law, cohabitees do have inheritance rights under the Administration Act, if they can establish they have been in a de-facto relationship with the deceased for two years or more.

Generally, anyone over the age of 18 who is entitled to a share of the estate can apply for Letters of Administration to the Probate Office of the Supreme Court for the right to manage the estate.

United States of America

Like Australia, each State has its own laws of intestacy. However, the laws are fairly uniform for small estates. In most cases, if the estate is valued at less than $100,000, rather than file Court proceedings, family members can file a Declaration of Small Estate through a bank. In California, this can even be done through the Department of Motor Vehicles (DVA). The person filing the Declaration must swear an oath that no other person has any greater claim to the deceased’s property.

State law varies for estates over $100,000 and where there are spouses or partners, and/or children involved. For example, in New York State , in the case of an intestacy where there is a spouse but no children, the spouse receives the entire estate.  If there is a spouse and children,
the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.

Unmarried partners have no right to inherit under New York intestacy law. This has led to a growth in ‘deathbed’ marriages. State law provides the right for family members to have such a marriage annulled if they can prove the nuptials were made specifically to achieve fraudulent financial gain.

Dubai

If an expat dies without a Will in Dubai, the default is that Sharia law will decide who inherits their estate. Sharia law is not codified, and there is no system of precedent in the UAE Courts.

Under Sharia law, if a husband dies intestate, the wife will qualify for only one-eighth of her deceased spouse’s estate. In addition, all assets (including bank accounts and shares) will be frozen until liabilities have been discharged.

Conclusion

For those advising clients who have property in the UK and are likely to acquire assets in the country they move to, it is imperative they are advised on the importance of having a valid Will in place, not only in the UK but in the jurisdiction they are moving to.

Dying intestate in the UK causes complications enough. For the survivors of expats who die without a Will, the resulting administrative and financial problems can be a nightmare – and one that is completely avoidable.

  • by TWP Main Admin
  • Aug 13, 2019

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Forfeiture Rule Modified In Assisted Suicide Case

BY: Paul / 0 COMMENTS / CATEGORIES: News

Are we ‘living’ longer or merely being kept alive well beyond our individual natural expiry date?

As modern medicine continues to improve, death and old age is rapidly becoming viewed as almost an act of personal negligence.  The medical profession and those struck down with illness are encouraged to ‘keep fighting’, sometimes long after disease has already won the battle and all that is left is a living corpse, denied the dignity and peace of death.

In a sensitive and poignant article by Katy Butler, the agony of prolonging death is laid bare:

“My father Jeffrey—a retired Wesleyan University professor who’d tossed me laughing into the air when I was a baby and taught me to read when I was four—had suffered a devastating stroke at the age of 79. A year later, to correct a slow heartbeat, he’d been casually outfitted with a pacemaker that kept his heart going until his life became a curse to him rather than a blessing. He’d told my mother, “I’m living too long.”

By the time the hellish summer of 2006 arrived, he was 84 and I’d come to believe that his pacemaker should never have been installed at all. The man I loved more than any other was going blind and falling into dementia. He did not understand the purpose of a dinner napkin and when I visited, I had to coach him to take off his slippers before he tried to put on his shoes. In June, he spent an entire weekend brushing and re-brushing his teeth. In August, he suffered a brain haemorrhage, fell in the driveway, and spent nearly a week in Yale-New Haven hospital, where he suffered a terrible form of cognitive decompensation, often afflicting the elderly, known as “hospital delirium.” When he came home, he asked my brother Michael why the living room was filling up with leaves.”

There is another side to modern life and advancements in access to information; should we be struck down with a degenerative disease, dementia, or a slow-acting but terminal cancer, we are under little illusion of the pain and indignity that lies before us.  For this reason, and because we can be kept ‘existing’ for many years, in a state few would describe as living.  And this has brought the debate of ‘assisted suicide’ to the fore, with each new case which hits the headlines challenging our concepts of morals, death, and the right to control our own lives to the end.

Helping someone die and the rule of forfeiture

The recent case of Ninian v Findlay [2019] EWHC 297 (Ch) provides a small, but significant advancement in the law surrounding assisting a loved one to die.

Section 1 of the Forfeiture Act 1982 states:

The “forfeiture rule”.

(1) In this Act, the “forfeiture rule” means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.

(2) References in this Act to a person who has unlawfully killed another include a reference to a person who has unlawfully aided, abetted, counselled or procured the death of that other and references in this Act to unlawful killing shall be interpreted accordingly.

The case concerned a widow of an 80-year-old man who was diagnosed with a progressive, incurable, degenerative disease.  Three years after being diagnosed, he made the decision to end his life through accompanied suicide and contacted the Dignitas clinic in Switzerland.  At the time his wife was unaware of his decision.  When she discovered his plans, she tried to dissuade him, but he was determined.  She convinced him to tell his doctor and to look into palliative care options.  However, she also assisted with much of the administrative aspects of applying to the Dignitas Clinic and made the necessary travel arrangements as he was unable to speak.  And because she loved him, she accompanied him to the clinic.

The widow was never prosecuted for her actions as the police concluded that to take such a step would not be in the public interest.

The widow made an application under section 2 of the Forfeiture Act 1982 to have the forfeiture rule modified or excluded.  Such action could be taken by the Court if it was felt justice demanded it.

Section 2 of the Suicide Act 1961, which provides for the offence of encouraging or assisting suicide, was first considered.  The Court noted that in 2010, substantial amendments had been made to the Suicide Act with the aim to clarify the existing law.

The offence was held to comprise two elements: performing an act capable of encouraging or assisting the suicide (the actus reus) and establishing that the act was intended to encourage or assist the suicide (the mens rea).  It was not necessary that the act actually encouraged or assisted the suicide, only that it was capable of doing so.  Thus, the actus reus was objective, whereas the mens rea was subjective.

It was concluded that the widow had not wanted her husband to go to the Dignitas Clinic.  However, it was her actions that made the trip possible.  Therefore, when viewed objectively, the acts of the widow were capable of assisting suicide, and she had the necessary intent to help her husband end his life, despite her objections.  This meant the elements to constitute an offence under section 2 of the Suicide Act were satisfied.

Once it was established that the forfeiture rule applied, as it did in this case, the Court may have regard to the Claimant’s conduct and material circumstances of the case when deciding whether or not to exercise its discretion.

The Court examined the dissenting decision of Lord Justice Mummery in Dunbar v Plant [1998] Ch. 412, [1997] 7 WLUK 487, whereby the scope of discretion was discussed, and paragraphs 43-45 of a publication issued by the Director of Public Prosecutions entitled “Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide“, which set out the factors tending for and against prosecution.  It was decided that although the dissenting opinion in Dunbar was not determinative, the fact the CPS declined to prosecute was a powerful factor in the Court granting relief from forfeiture.

Conclusion

It is safe to say that these types of cases will become more frequent.  Regardless of what the law states, compared to even 10 years ago, people are more educated, wealthier, and have access to the information and means to take matters into their own hands when it comes to the right to die.  Anyone who has loved knows that they would do anything to end their beloved’s suffering.  And if relief from forfeiture is not granted, is it not a final insult to the bravery of the person who has taken matters into their own hands, to refuse to honour their last wishes via their Will?  Or do we need to stand firm, and apply the law rigidly, until Parliament resolves the matter of whether a human being has the right to decide when to die?

What do you think?

  • by TWP Main Admin

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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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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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