Month: Apr 2016
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What is a Lasting Power of Attorney?
As we grow old it can be more difficult to manage the day to day decisions we all have to make. There is an option for us to consider when we get to that time in our lives though and it is called a Lasting Power of Attorney.
There are two types of lasting power of attorney available and they are:
- health and welfare; and
- property and financial affairs
Although there are two types of power of attorney, you do not need to choose just one, you can decide to implement both.
In all cases however, the powers must be registered before you lack mental capacity. They cannot be prepared after the event.
Health and Welfare Power v Advance Decision
The health and welfare power should not be confused with an advance decision or “living will”. The advance decisions is a document that allows you to make specific advance decisions in specific circumstances when you lack capacity for example when you are unconscious or cannot speak following an accident. The Health and Welfare Power of Attorney is far more generic.
There are numerous other differences between the two, some of them being quite subtle. Please see the further article for more clarification.
Health and Welfare Power
A Health and Welfare Lasting Power of Attorney (LPA) gives one or more trusted persons the legal power to make decisions about your health and welfare if you lose metal capacity. The person who grants power is known as the ‘Donor’ and the person appointed to make decisions is the ‘Attorney’.
Your Attorney can make decisions about anything to do with your health and welfare such as:
- refusing medical treatment
- where you are cared for and the type of care you receive
- day-to-day things like your diet, dress and daily routine
The Health and Welfare Lasting Power of Attorney, like the Property and Financial Affairs Lasting Power of Attorney registered with the Office of the Public Guardian and subject to more stringent administrative requirements before it is valid compared to an Advance Decision.
Property and Financial Affairs Power
A property and financial affairs power allows you to share the responsibility of your financial affairs with someone you trust. This will be particularly beneficial if you are struggling with the day to day responsibility of making sure your bills are paid on time, that your benefits are collected or perhaps the process of selling your home if you are downsizing or moving into a residential home or sheltered accommodation.
In order to give a property and financial affairs Lasting Power of Attorney to someone, you should consider whom you want to appoint. You need to trust that your attorney will act in your best interests. Once you have made this decision you will need to complete the correct forms and register your Lasting Power of Attorney with the Office of the Public Guardian. You will also need to be over 18 and have the capacity to make your own decisions.
Arranging one or both Lasting Power of Attorney instructions may help you to feel secure that your wishes in the future will be honoured and that you are protected.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
0207 183 2898
The “New” Intestacy Rules
We all know how important it is to have a will, yet millions of us put it off and, in doing so, run the risk of the state determining how our assets will be distributed on our death.
We lawyers describe someone who passes away without a will as dying intestate.
The Intestacy Rules (set out in the Administration of Estates Act 1925 and amended by the Inheritance and Trustees Powers Act 2014 (ITPA 2014) determine who gets what if you die without making a will.
The Intestacy Rules (as at October 2014) and probable scenarios:
You are married (or in a civil partnership) and your estate is worth less than £250,000
Under the Intestacy Rules, your surviving spouse/civil partner inherits everything.
You are married (or in a civil partnership), your estate is worth more than £250,000 and you have no children.
Again under the Intestacy Rules, your surviving spouse/civil partner inherits it all.
You are married (or in a civil partnership), your estate is worth more than £250,000 and you have children.
Under the Intestacy Rules, the first £250,000 of the estate and all the personal possessions (as defined by law) will go to the spouse/civil partner. The remainder of the estate will be divided in half, with half going straight to the surviving spouse and the other half being divided between surviving children.
If any child should pre-decease you, then their own children (your grandchildren), would get their parent’s share.
You are not married (or in a civil partnership) but have children
Under the Intestacy Rules your children will inherit everything equally. Again, if a child has pre-deceased you, then their children will get their parent’s share.
You are not married (or in a civil partnership) and have no children
Under the Intestacy Rules, your surviving relatives will inherit in the following order:
- Brothers or sisters or their children (or children’s children etc)
- Half-brother or sisters or their children (or children’s children etc)
- Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or children’s children etc)
- Uncles and aunts (brothers and sisters of the half blood of a parent) or their children (or children’s children etc)
- If you have no surviving spouse/civil partner, parents, children, siblings, grandparents, uncles, aunts, cousins, first cousins etc then under the Intestacy Rules, everything will go to the Crown under rules known as bona vacantia.
Avoiding Intestacy Problems
If the Intestacy Rules cause financial hardship, then a claim under the Inheritance Act can be considered. This however can be VERY expensive and only done after careful consideration, preferably with expert legal advice first.
However, the best way of avoiding the unintended consequences of the Intestacy Rules is quite simply to make a will. It is easy to do and cheaper then you probably think.
- The Intestacy Rules do not recognise unmarried “common law” partners.
- The Intestacy Rules allow a 28 day survivorship period.
- To inherit under the Intestacy Rules a person needs to be aged 18 or over or have married earlier. If they inherit as a minor the gift will be held on trust for them until they reach the age of 18. If they do not reach the age of 18 (i.e. they either pre-decease as a minor or die before coming of age) the gift will revert to others in the same group (class) as them or the next class below if no such person in a same class exists.
- The effect of the Intestacy Rules can be very unfair, especially for unmarried couples.
- Surviving dependants may be entitled to seek more adequate provisions by making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 but this can be very expensive.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.
0207 183 2898