Dementia – managing your affairs with a Lasting Power of Attorney

Dementia is a disease of the brain that causes memory loss, personality change and impairs a person’s mental agility, understanding and judgement. It is most common in people aged over 65, however the number of people aged less than 65 being diagnosed with Dementia is increasing. There is currently no cure for dementia and it is estimated there are 800,000 people in the UK suffering from the condition. This figure is unfortunately continuing to rise and it is predicted that there will be one million people with dementia in the UK by 2021.

Dementia causes hallucinations, confusion, and depression and can completely change a person’s life. This can be a very distressing and difficult time for dementia sufferers and their families.

Following Alzheimer’s awareness month, we want to raise awareness of the steps you can take now to plan for if you should be diagnosed with dementia. Whilst there is no cure for the condition, there are actions that can be taken to ease the difficulties that dementia can bring.

Many dementia sufferers will eventually reach a stage where they lose mental capacity and can no longer make decisions for themselves. This can lead to many problems in the continuation of their day to day lives. Losing mental capacity can result in the sufferer being unable to manage their property and financial affairs, such as paying their bills, taking care of their money and managing their property correctly. It is common that sufferers get into financial difficulty and need assistance from friends or family members, however without legal authority, friends and family cannot step in to help them.
A Lasting Power of Attorney is a legal document that authorises a person to assist in the affairs of another. There are two types of Lasting Powers of Attorney, Property and Financial Affairs and Health and Welfare Decisions. When setting up a Lasting Power of Attorney you can appoint friends or loved ones to act as your attorneys and make decisions for you should you ever lose mental capacity.

A Lasting Power of Attorney for Property and Financial Affairs will allow your chosen attorney’s to help you manage your finances before you lose mental capacity and it will allow them to continue managing your property and financial affairs should you lose capacity. A Lasting Power of Attorney for Health and Welfare decisions will allow your attorneys to make decisions regarding your medical treatment and general health and welfare when you no longer have the capacity to make those decisions yourself.
Lasting Powers of Attorney can help ease the stressful circumstances caused by conditions such as dementia. Taking such measures now can provide peace of mind knowing that your loved ones will be able to manage your affairs if you ever lose mental capacity.
Dementia can happen to anybody and help and support is vital for sufferers. Don’t let Dementia win.

Lasting Powers of Attorney need to be set up whilst you are still able to do so, so it is important to take steps now to safeguard your future.

To enquire about setting up Lasting Powers of Attorney or for more information contact our specialist private client solicitors who will be happy to assist you. Based in Wolverhampton the team can be contacted by telephone on 01902 577732 or by email at info@reespage.co.uk. Home visits are available.

Advertisements
Posted in Lasting Powers of Attorney

How do I stop someone contesting my Will?

There is a common misconception that simply by leaving someone out of a Will or by providing for them by making a small bequest that this will be enough to stop them from contesting the Will. The plain fact is that there is no clause that you can include or provision which you can make in your Will which will guarantee that there will be no challenge following your death. However, whilst not being able to completely stop a challenge, there are some simple steps you can take to help make sure that should a challenge arises that your wishes are fully taken into account and that your estate is distributed in accordance with your wishes and not someone else’s expectations.

If you think that there is a possibility of someone contesting your will after your death then the most important step is to instruct a specialist wills and estate planning solicitor to draft your Will. Your solicitor will need to ask you about your marital status, your partners, the children of the relationship and any children of other relationships and to understand whether and to what extent they and anyone else are reliant on you. Whilst they won’t be in a position to tell you who you should or should not leave your estate to, your solicitor will advise as to the potential dangers of leaving a close family member or anyone who is financially reliant on you out of your Will. If you don’t wish to make provision for them then it’s important to understand and to fully document the reasons for this decision. We normally recommend that a letter setting out in detail the reason why that person is being left out of your Will.

Whilst not preventing that person challenging the Will, the letter in most cases will be sufficient to head off any dispute. In the event that an application is made to vary your Will then the letter will be made available to those deciding on whether that person’s challenge should be upheld. These documents can often be a major piece of evidence in these matters, as they are the person’s own words and reasons.

An additional benefit of using a solicitor in cases such as this is that they will also prpepare detailed attendance notes of the instructions outlining the discussions surrounding a person’s omission, so reinforcing the details of the accompanying letter to the Will. There are many grounds to contest a Will such as undue influence, lack of capacity or lack of reasonable provision but you can greatly reduce the chances of any claim succeeding by leaving an explanatory letter with your Will and by providing your solicitor with the background information for retention with their file.

In conclusion, if you want to leave a family member, or a close relative or someone who is financially reliant on you out of your Will then completing your Will with a solicitor is the only option you should seriously consider. This will give you the best possible chance of having your wishes adhered to, for want of a better term, to the letter.

Posted in Uncategorized

Capacity to make a will

In order to make a valid Will you need “capacity.” In short this means you have to be able to understand what you are doing.

The legal test as to whether a person has the capacity to make a Will is of the utmost importance to both beneficiaries and solicitors alike. The rules as to whether a person satisfies this test have been refined through case law, and the current guidelines are found in the case of Banks v. Goodfellow.

If it can be proved that a person did not have the “relevant testamentary capacity” at the time of signing the Will, it will almost always mean that the Will is invalid – which can mean that the person’s assets do not go to the person they wanted to have them..

In Banks v. Goodfellow, it was held that a person is presumed to be capable of making a Will until the contrary is proved by acceptable evidence. The burden of proof only falls on those defending their position as beneficiaries when a “grave suspicion of incapacity arises”.

In order to satisfy this test, a person needs to understand:-

– the nature of what they are doing (to understand why Wills are made and what a Will does)
– , what property they are leaving (do they understand that they have a house, or £50,000, and how much money that is),
– the claims they ought to consider (do they know what relatives they have and what moral claims there might be on their Estate – e.g. to provide for their children?)

If there is any doubt about capacity or there is concern that someone might try and raise this later as an argument that could be used to contest the Will, it is common for a solicitor to ask for a medical opinion. The Courts hold medical evidence in strong regard in these matters, especially those where the doctor or consultant had extensive knowledge of the individual or had recently examined them. In most cases the person’s general practitioner fulfils this role, and if there is any question as to whether someone making a will has capacity then it will always be sensible to obtain a medical opinion which can be placed with the Will in order to avoid the possibility of the Will being contested after death.

Although a valid reason of contesting a Will, the accusation that a person lacked capacity is rarely raised on its own. Those bringing an action against the estate of the deceased often attempt to prove the person had been unduly influenced, coerced into giving the instructions that they did, or had a lack of knowledge, with the capacity argument being a background issue that supports their main argument. That aside however, the increase in understanding and research into illnesses of the mind such as Alzheimer’s and Dementia may mean that this issue becomes a lot more common in future contested estates.

A professionally drafted Will prepared after a careful consultation and properly documented by a Solicitor will make it a lot harder for challenges to a Will to be made.

Posted in Uncategorized

Why should you make a Will? – Part 2 – Execution and Validity

In times of recession it’s fair to say that everyone is looking to save a few pence here, a few pounds there, in order to make finances a little easier on the pocket. However, when you make a Will is it really worth trying to save a pound or two when an invalid Will could end up costing your loved ones hundreds, thousands or even more?

Compared to a lot of legal work, making a Will is normally comparatively inexpensive and it is frequently a matter where the client receives the most value in terms of time engaged for the cost quoted. Most firms such as ourselves operate on a fixed costs basis regardless of the complexity of a client’s instructions and for that the client receives the complete matter from start to finish including all advice, correspondence, telephone calls etc that are required right up to the day when the Will is signed. With this arrangement the client has the peace of mind that all the legal execution and validity requirements of a Will are adhered to, and the guarantee that the instructions will be interpreted and expressed, as the client desires.

Common mistakes involved when a do-it-yourself Will is produced, involve the process by which the document is executed. One such example involves the need for two witnesses to witness the signing of the Will, and for these individuals to be independent and unrelated to the person signing. The use of the word “independent” is crucially important as it means a person is incapable of being a witness if they benefit from the provisions included within the Will in any way. If a person did believe incorrectly that they were capable of being a witness in this situation the whole Will could be proved invalid. For example if you were planning to leave your whole Estate to your wife but you then get her to witness your Will, she will not get anything.

In light of the above, one needs to ask themselves whether this really is a risk worth taking? In the modern family arrangement that exists today, many people have stepchildren they wish to provide for, partners or even dear friends that they treat above any family. All these parties would stand to miss out through an invalid Will as the Law of Intestacy only provides for family members to take the estate of a deceased. The difference in value is frequently vast between the cost of making a Will with a solicitor and the value of a person’s assets. Is it worth jeopardising the destination of your house, savings, shares, etc. for the sake of a few pounds now? ~ Definitely a question worth considering.

Posted in Uncategorized

Why should you make a Will? – Part 1 – Right of Occupation

It is estimated that only 1 in 7 people have a Will, but increasingly in the modern family arrangement their importance is growing dramatically. Gone are the days when a husband and wife stayed married for life, had 2.4 children and relied on the Laws of Intestacy to provided that their estate passed on to their loved ones. It is now commonplace that a person may have had multiple marriages, children by different parents, or even choose to remain unmarried. In all these cases a Will is of paramount importance to direct where a deceased’s assets should be bequeathed. The Law of Intestacy seeks the last surviving blood relative and in absence of one passes the entirety of an estate to the Crown. Who would want this if they had a close friend, a cohabiting partner or a favourite charity?

One such area worthy of highlighting is the ability to give a loved one a right of occupation to remain in your property for their lifetime. To liken this to a real life example, a testator may have had children by another during their lifetime and now having ended their relationship with the children’s parent has started a new relationship with another. In my experience, whilst a testator is always concerned with the needs of their new partner, ultimately their intentions are in most cases to provide for their offspring. As a person’s most valuable asset is normally their home, this raises the question of what would happen to the property were the person to die. A right of occupation clause would be important in this case, as it would allow the testator to place their property in a life interest trust for the benefit of their children whilst allowing their current partner to remain in the property for their life. This would then serve to tick both boxes of the testator’s concerns, (1) making sure offspring are provided for and (2) making sure their new partner was not without a home. The trust would be worded in such a way to protect the children, ending the arrangement if the deceased’s partner married or cohabited, as this new habitant of the property may end up having a claim on the property if they contributed to the property’s running or improvements.

In all, making provision for children or another may not always have to be at the detriment of a new partner but in the absence of a valid Will with a right of occupation it would be. Would you like to take that chance?

Posted in Uncategorized

Welcome

Welcome to the Wills and Estate Planning blog from Rees Page Solicitors.

We are a Lexcel accredited law firm with offices in Wolverhampton and in Bilston.

Our specialist solicitors are members of STEP – the Society of Trust and Estate Practitioners – and have a reputation for providing quality advice which is both cost effective and friendly. In this blog we’ll be highlighting the simple steps which you can take to make sure that your Estate is dealt with as you rather than as the State would wish, to avoid unnecessary disputes following death and to keep more of your assets and money out of the hands of the tax man and in the hands of your family.

Posted in Uncategorized | Leave a comment