Why have a lasting power of attorney?

Lasting Power of Attorney Guidence
  • To gain control of finances in the event of a loved one’s loss of capacity
  • To access jointly held assets like bank accounts;
  • To give medical consents for treatments on behalf of a loved one;
  • To avoid onerous and costly applications to the Court of Protection.

 

A lasting power of attorney (LPA), allows you to set out how affairs, relating to your health and finances, should be managed, should you ever lose the (mental) capacity to do so.

Only around 1% of people in the UK have these crucial documents. I’ve a professional background in Alzheimer’s Disease myself and as co-founder of the firm, insist that Confidence Wills price checks, so as to offer high quality LPA drafting services at the lowest cost.

Legally there is no recognised ‘next of kin’ in English law (though many believe there to be). If you do not have a registered lasting power of attorney in place before you need it, the Court of Protection will take control of your affairs. Challenges to this court may absorb six figure sums and years of life.

Many do not wish to face the implications of losing mental capacity and the loss of control entailed.

Leading reasons for loss of capacity include: dementia; stroke/brain injury and mental health problems. This year in the UK, one person was diagnosed with dementia; hospitalised with brain injury or deemed lacking in capacity under the mental health act, every minute.

 

Moreover, few realise that registration and completion of such documents may take time, it is perfectly possible to move from a diagnosis of dementia to a loss of capacity more quickly than such a document can be finalised.

 

Below are two cases to which the presence and absence of LPA documents (respectively) was pivotal (details including names and dates have been changed):

In 2013 Edna registered a Health and Welfare LPA appointing her husband Reg attorney. By 2016, Alzheimer’s disease had taken hold. The condition brought with it, not only cognitive decline, but fear. Edna’s communication became muted and uncertain. Intensely private, she would whisper her wishes to her husband and no one else. Diagnosed with stomach cancer in 2018, Edna attended hospital for a key examination. Without consent from Edna, the doctor informed Reg that he was unable to proceed. In the event, Reg produced the LPA, signed 5 years earlier, and treatment continued. Latterly, Reg attributed his final 18 months with his wife of forty years, directly to the existence of that single document.

In 2016 Simon, a professional man of 38, fell off his Triumph motorcycle on the A435 south of Birmingham. His wife Julie, had supported him throughout his career. Despite postgraduate qualifications of her own, she took pride in her role as homemaker, raising their three young children. The crash left Simon in a coma for four years. In the absence of an LPA, Julie was unable to access even their joint bank account, into which she herself had paid, but for which two signatures were required.  Struggling with single parenthood and grief, the Court of Protection decided that Julie was to be paid an ‘allowance’. She was forced to explain to the authorities, each penny spent. Balancing, what amounted to, an account of her own misfortune, tore at the fabric of her fragile young family. When Simon ultimately passed away, jointly held property such as bank accounts and their house passed to Julie, her emotions were understandably chaotic, and in truth remain so.

I mean no melodrama, cases such as those of Simon and Edna, occur daily, each different, each personal. You, yourself may have experienced the upheaval of the court’s placing of an elderly loved one into a care home, followed by the enforced disposal of their assets to pay for the privilege.

The complexity in creation and registration of such documents, persists. Their low prevalence suggests that salutary lessons of cases such Simon’s and Edna’s, go unlearned.

Confidence Wills can help, we will always discuss options and costs candidly with you. Please enquire now.

How do I sign a will during the Covid 19 outbreak?

How do I sign a will during the Covid 19
  1. Physical signing and witnessing of the document is still required,
  2. Witnessing can take place at distance or through windows,
  3. DIY wills are potentially more risky in such times,
  4. Factors such as sanitisation and materials used, during signing, may mitigate infection risk.

Current English law on the creation of a legally valid will rests for the most part on the Wills Act 1837. Under this act, testators (those making a will) must sign the document ‘in the presence’ of at least two witnesses. The Law Commission examined the notion of ‘presence’ for such purposes in 2017, concluding that individuals must be both in the same room and have line of sight of documents.

The need for ‘physical presence’, is believed to exclude the use of video conferencing or other telegraphic ‘lines of site’, and has been held for some time (In the goods of Chalcraft [1948]).

In the context of virus containment measures, aimed at limiting spread of Covid 19, the Ministry Of Justice have recently been considering emergency legislation aimed at making the signing of wills easier.

Proposals have included the use of ‘video’ witnessing, the use of a ‘privileged will model’ (based on short form documents given to soldiers directly before combat, requiring of no witness) and the need for only one witness (based on Scottish law).

Despite elevated demand, at this anxiety provoking time, The Ministry for Justice has rejected such proposals. Commenting: “This is a delicate area of law and we absolutely must continue to protect the elderly and vulnerable against potential fraud”.

One can see their point, at a time of heightened dependence amongst the vulnerable, the risk of factors harmful to the integrity of a will, such as undue influence, might reasonably be assumed to be elevated.

This highlights the importance of the instruction taking process. In a one to one meeting, even by phone or video-link, certain evidence can be gathered by a drafter to support your will in the event of future challenge. People considering DIY wills at this time, should be more careful than ever, as the absence of a direct interaction risks compounding those already present.

There are certain elements which can be combined to potentially mitigate the risk of viral transmission during signing. Firstly, and whilst video witnessing is excluded, witnessing through a window has been deemed to constitute physical presence in case law (Casson V Dade, 1781). Secondly, protective clothing and sanitisation can reduce the risk of viral transmission. Finally, evidence is crystallising on Covid 19’s ability to survive for periods of time on different materials (see https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics).

Whilst no approach can be deemed fool proof, not least due to the newness of the Corona Virus and associated ignorance, Confidence Wills have consulted with both vulnerable clients and clinicians to develop an execution protocol, which is practical and aimed at mitigating risk to signers, based on the evidence available.

If you would like any further information on this key area please contact Confidence Wills on  0121 231 7010 or info@confidencewills.co.uk.