Category Archives: Mental Capacity

What is a Trust?

A trust is a legally binding arrangement where an individual or group (settlor) delegates the management of money or assets to another person or an organisation (the trustees), who in turn passes them to a person/people (beneficiaries). Here’s more information on trusts, why people set them up and the sort of trust funds available in the UK…

When people set up a trust
The money or assets involved in a trust are usually designated to support a person who can’t manage money, such as a child or a person with limited mental capacity or a learning disability.
A trust may also be used in reverse. This is when your own money is used to look after you if you’re unable to look after yourself due to an illness or disability.

The costs of setting up a trust
As trusts can be complex, they should really be set up with professional help to avoid any costly mistakes. Usually, setting up a trust costs around £1,000, but if you’re setting up a trust for a disabled child there are a number of charities, such as Mencap, offering contribution schemes to assist with the financial aspect.

Reasons for setting up a trust
There are a number of different reasons why families, groups and organisations may set up a trust, some of which include:

  • Protect those who are unable to control their spending
  • Protect family assets and keep them in the family
  • Safeguard assets against bankruptcy
  • If the beneficiary is a child or someone with a learning disability (including adults)
  • A company distributing pensions over the duration of an individual’s employment.

There are many different types of trusts, although bare or absolute trusts are the most popular type of trust that people can set up in the UK. The settlor transfers money or assets to the trust for the trustees to look after and, when the beneficiary turns 18 years old, they receive all the assets and money from the trust.

An interest in possession trust involves the trustees transferring all trust capital to the beneficiary for a fixed period of time – usually for the rest of their life. The beneficiary is then known as a ‘life tenant’ and the trust is known as a ‘life interest trust.’ The interest in possession will end when the life tenant dies and the ‘capital beneficiaries’ (usually the children when the income beneficiary spouse dies) inherit the capital of the trust.

To find out more about Trusts, and help in deciding which is best for your own circumstances, give us a ring on 01243 216900 or e-mail us at info@legalmatters.co.uk.

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Do you need a living Will?

A living Will (or an advance decision as it is also known) allows you to make a decision about refusing medical treatment in the future. It means that if you are ever in a position where you cannot communicate your wishes, medical staff know what they are. This can even include a decision not to receive certain life-sustaining treatment.

An advance decision is a legally binding document. However, if your family or medical staff are unaware you have prepared one, then your wishes may not be honoured.

This was the case for Brenda Grant. Brenda suffered a stroke in 2012 and although she had prepared an advance decision stating that she did not want certain treatments, she was fed artificially for two years.

In this case the hospital was in possession of the advance decision but had misplaced it.

Whilst Brenda had informed her doctor of her decision, she had not told her family, so it was only when her doctor flagged it up two years later that her wishes were finally respected.

If she had chosen to prepare a lasting power of attorney (LPA) instead, this situation could have been avoided.

An LPA for health and welfare covers a wide range of issues relating to the care of an individual if they don’t have the capacity to make decisions for themselves.

Though it is a legal document just like the living Will, it must be lodged with the Office of the Public Guardian in order for it to be recognised. This ensures that it will be recorded on a national and searchable register. One or more attorneys (normally family members) must be appointed to make the decisions, so in the event of you not being able to make them yourself, there is less risk that your wishes will not be known.

An attorney must make decisions that are in the best interest of the donor (the person who the LPA relates to). The donor can detail what their preferences are and list any instructions for specific circumstances.

Whilst it is possible to have both a living Will and an LPA for health and welfare set up, the latter will take precedence should a conflict arise.

At legalmatters we’re always happy to discuss our clients’ needs and to answer their questions. Call us today on 01243 216900 or email us at info@legalmatters.co.uk.

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Can a Will be challenged?

We all know that writing a Will is the best way to ensure your assets are passed on exactly as you choose after you die, but there are some instances when a Will might be challenged. They say knowledge is power, so now you know…

‘Lack of testamentary capacity’ – in other words, challenging whether the person was of sound mind when writing the Will. Essentially, in order to pass this test, it should be demonstrated that the person was aware that they were writing a Will, the value of the estate and that they understood the consequences of including or excluding people from the Will.

There are grounds to believe that it is invalid. There are all sorts of different reasons that can be given, from failing to sign it, failing to ensure it is witnessed and precisely who those witnesses are.

‘Lack of knowledge and approval’, which is where it’s believed that the person was not completely aware of the contents of the Will. An example here may be if a person who helped to prepare the Will is left a substantial gift.

Written under undue pressure or duress, or if you believe it is fraudulent or has been forged.

It does not reflect the actual intentions of the testator (the person whose Will it is) – perhaps because of a clerical error, or because the person preparing the Will failed to understand their wishes.

‘Reasonable financial provision’ has not been made for those left out of the Will. However, success of such a claim is dependent on proving that they could reasonably have expected that their living costs would have been met by the deceased.

To avoid challenges to your Will, it’s always best to work with those who really know what they are doing. Legalmatters can help, we’re always happy to discuss your needs and to draw up a properly written Will which will reduce the chance of dispute. Call us today on 01243 216900 or email us at info@legalmatters.co.uk for further details.

Live to work, or work to live?

Unfortunately fellas, it is a proven statistic that ladies are winning in the longevity stakes, compared to their hairier counterparts.

Figures published by the Office for National Statistics have the average female’s life expectancy coming in at 88.3 years, with the chaps not far behind at a nevertheless none too shabby 85.6 years.

Reasons for this difference are down to a variety of factors; socio economic, geographic and last but not least, being unbelievably stubborn (presumably). In addition, recent data from the ONS also uncovered that different jobs can also affect people’s life expectancy, and not just for the obvious reasons (needless to say, supervillains and Road Runner pest control operatives don’t fare too well).

The study concluded that for both sexes, if you work in a higher managerial position or in a professional occupation, such as a doctor or architect, you can expect to add an additional 365+ days onto your life. If on the other hand you work in what is classed as a ‘routine occupation’ (such as a lorry driver, bar staff or labourer) then statistically, you can shave off just over a year.

More men and women from professional jobs are likely to make their magic 100th birthday than those not working in the professions. Indeed, men are a whopping 3 times more likely to reach this milestone, compared with their non-professional male counterparts.

Since the mid-1980s when this 30-year study commenced, life expectancy across all jobs has been steadily increasing. This is brilliant news. Against all the odds, and in the face of constant nuclear and cold war threats, hairspray related holes in the ozone layer and a diet consisting almost entirely of microwavable meals, e-numbers and Findus Crispy Pancakes, we made it out the other side. Well done everyone!

Naturally, the longer you live, the more risk you have of developing various illnesses. Nearly 60% of those aged 80 or over have a disability. The leading cause of disability, ahead of stroke, heart disease and some cancers, is dementia.

And therein lies the poignant issue; whilst a long life in certainly something to be applauded, surely a happy, healthy and fulfilled life is what we all strive for?

Obviously, none of us can predict the future. For every base jumping, bomb disposal expert who dies peacefully in their sleep well into their 90s, you will have a sensible, cautious, risk assessor who gets hit by a bus at 26. We are only on this beautiful planet for such a short amount of time but being in a job you dislike is certainly one way to make the days feel longer. Life is, quite frankly, too short. So follow your bliss to make the years happy ones, regardless of what job you are in. It’s not particularly realistic to think about changing your job to try to affect the statistics, but it is worth planning ahead.

Whatever your vocation, everyone should have a Will in place, and one which is reviewed from time to time to reflect changing circumstances. Given that the chances are increasing of developing an illness which might affect mental capacity, everyone should have a Lasting Power of Attorney (LPA) set up too.

Legalmatters will definitely be receiving a telegram from the Queen (or presumably the King by then) congratulating us on our centenary. A heady mixture of the best clients in the land and a steady stream of cake, means job satisfaction levels are through the roof and eternal life is surely on the cards.

But if loving your job really is the key to a longer life, surely you can’t get better than the recently advertised ‘International Gin Taster’ as a key to eternal youth? Legalmatters imagines that the successful ‘gintern’ may well live forever (if indeed, their liver can keep up). Chin chin.

Before You Forget…

At breakfast this morning, a woman said to her husband: “My memory is getting really poor, I went upstairs yesterday to get something and by the time I got to the top of the stairs I had forgotten what I was going for.”

The husband said: “How bad is your memory?”

She responded: “Sorry, what were we talking about?”

Old jokes are always the best, but early signs of a loss of memory are an uncomfortable reminder of the aging process and certainly no joke.  Some of us will inevitably get dementia or other debilitating conditions that could result in the loss of mental capacity.

Do you know you what happens if you or your partner becomes unable to make decisions for themselves due to old-age memory issues or dementia? Potentially you can find yourself in a position where you cannot pay for services or make decisions, without lawyers and something called the Court of Protection) being involved. It’s an expensive and long-winded process. That is, unless you have written a legal document called a Lasting Power of Attorney (LPA) in advance of your loss of mental capacity.

The Citizens Advice Bureau website says:

You should make an LPA if you have been diagnosed with, or think you might develop, an illness which might prevent you from making decisions for yourself at some time in the future.

 “The kinds of illness which might prevent you from making decisions for yourself include:

  • dementia
  • mental health problems
  • brain injury
  • alcohol or drug misuse
  • the side-effects of medical treatment
  • any other illness or disability.

“You must make an LPA whilst you are still capable of making decisions for yourself. This is called having mental capacity”

At legalmatters, we are experts in writing Lasting Powers of Attorney and talking you through the pitfalls. Whilst no one wants to think about the potential of problems in later life, writing an LPA could save you and your family considerable cost and grief in the not too distant future.

Call us today on 01243 216900 or email us at info@legalmatters.co.uk for a no obligation discussion about these issues.

Lasting Power of Attorney – Planning for the Unexpected

Dementia is a growing problem in the UK. According to the Alzheimer’s Society, there are currently 850,000 people with dementia, and that number is set to reach one million by 2025.

At some point, many people with dementia will reach the stage where they are unable to make decisions for themselves. As a result, it is very important that somebody is nominated to have lasting power of attorney (LPA).

An LPA allows that person – known legally as your ‘attorney’ – to make decisions on your behalf if you are no longer in a position to make them yourself. There are two types of LPA – a property and finances LPA and a health and care LPA. You don’t have to make both at the same time.

Choosing the right person to act on your behalf can be very difficult, so it pays to take your time and not rush the decision. They will have to be over 18, and if making financial and property decisions, cannot have been declared bankrupt.

You will need to appoint someone that you trust, who you believe knows you well and will act in your best interests. You also need to find someone who is reliable, and who has the necessary skills to take on the responsibility. There is little point picking someone who knows you well, but who will be unreliable in meeting their obligations. Your attorney needs to be someone that you can always rely on.

Most people pick a family member, such as their partner or child, but you can appoint a professional, such as a solicitor if you prefer. Bear in mind that they may charge for their time.

You should also consider picking a replacement attorney. This is the person you wish to make decisions on your behalf should the first attorney no longer be able to or is unwilling to carry out the role. So, if you pick your partner for example, you may choose to select someone younger such as one of your children as the replacement attorney.

For help with this, call us on 01243 216900 or email us at info@legalmatters.co.uk.

A Good Decision

Alzheimer’s disease and dementia knocked heart disease off the top of the list for main causes of death in England and Wales for the first time. Here, we offer advice on planning for the future.

In 2015, 61,686 out of a total of 529,655 deaths registered in England and Wales were attributable to dementia, according to a report just published by the Office for National Statistics (ONS) – that’s 11.6%. The mortality rate for dementia has more than doubled since 2010 and the Alzheimer’s Society estimates that one million people will have the condition in the UK by 2025.

This statistic raises important questions for families around writing wills. When a person is diagnosed with dementia, it’s a good idea to get their legal and financial affairs in order and give a friend or relative lasting power of attorney. This helps in the future in case there is a point when the dementia sufferer can’t make decisions for themselves.

Indeed, the Alzheimer’s Society recommends this in its ‘Planning Ahead’ guidebook for people with dementia: “Once you have had a chance to adjust to manage another person’s affairs. So if a dementia sufferer hasn’t made an LPA, their loved ones will need to apply to the Court of Protection to become their deputy in order to manage finances on their behalf. It’s doable but it can be stressful, time consuming and expensive.

There are two separate categories of LPA – one around finances and another around health and care. Each has to be set up individually and registered with the Office of the Public Guardian.

You should take legal advice on these very important documents and certain wishes may have to be drafted carefully. Our lawyers at legalmatters have been safeguarding family’s futures since the inception of LPAs in 2007 and with their predecessors, enduring powers of attorney, before that. Call us now on 01243 216900 or email us at info@legalmatters.co.uk for advice to ensure that, should you become incapacitated, your life is in the good hands of people you love.your diagnosis, take time to ensure your affairs are in order.

It may become more difficult for you to make decisions or choices about financial or legal matters as time goes on. Where possible, make these plans as early as you can with a trusted friend, family member or professional (choose someone who is likely to be able to support you as time goes on).”

One of the most important aspects of forward planning for everyone, particularly if dementia runs in the family is to investigate making a Lasting Power of Attorney (LPA). An LPA enables someone to choose who they want to make decisions for them, should they become unable. Those decisions could be around their financial and property concerns or their health and welfare. This may also cover deciding whether they should go into a care home.

If a person with dementia hasn’t made an LPA and loses the ability to make decisions, the situation for loved ones can be complicated – and distressing. In the case of financial decisions, for example, only someone with a formal legal power can completely

Jimmy Hill: Care and Capacity- Why Make a Lasting Power of Attorney?

With the news that the former footballer Jimmy Hill is suffering from Alzheimer’s disease came the accompanying stories that his family are in dispute over his care. Such circumstances are worryingly common, but can usually be avoided.

The former Match of the Day presenter was the first English club chairman to abolish standing at matches and was a well-known figure in the profession. Jimmy Hill gave joint powers of attorney to his current wife and a solicitor in 2005. By 2008, Jimmy Hill’s condition became such that he was deemed to have lost mental capacity, and the Enduring Power of Attorney (EPA) was registered with the Office of the Public Guardian, meaning that his wife and the solicitor could take over management of his affairs. The person who makes the power of attorney (‘donor’) cannot alter the identity of his attorneys after he loses mental capacity, so Jimmy Hill’s choice of attorneys was binding and what followed was that his children have no say in the running of his affairs.

EPAs were replaced from 1 October 2007 by Lasting Powers of Attorney (LPA’s) which have the same effect.

Jimmy Hill’s five children (from his previous marriages) only discovered the existence of the EPA in 2008, and they did not find out that they were not named as attorneys until the EPA was registered. Understandably, their lack of involvement caused friction in the family.

This case has attracted significant media attention as two of Jimmy Hill’s children made the news of his condition public in an effort to raise awareness regarding the problems around mental capacity. Joanna Hill, Jimmy’s daughter has commented that children should talk to their parents and discuss how affairs should be dealt with before deterioration sets in.

This high-profile case highlights the need to make a power of attorney and to choose your attorneys carefully. Opting for a power of attorney can involve emotional decisions, but in the long run it is more desirable for both the individual and their family. Without an LPA, people are powerless to do even the most simple things on their relatives’ behalf- there would be the need to apply to the Court of Protection which is a lengthy and costly process.

Legalmatters can assist here by offering an affordable, fixed-fee Estate Protection package (Will and LPA). Avoid unnecessary uncertainty for your family.