Dementia: what do I do now?

Receiving a diagnosis of dementia is likely to send your world into freefall. Questions will circle about the future:

  • What I will do?

  • What will happen?

  • How long before memory starts to fade?

  • Will I be able to stay in my home?

  • How will it affect the family?

Although you cannot predict what direction events will take certain issues can be addressed to alleviate unnecessary worry. As long as you still have capacity to give instructions, even after a diagnosis, there are things you can do to make life easier for you and your family.

Do you have a Will?

No? Make one. Yes? Review it.

A Will ensures those you wish to inherit do rather than leaving it to chance. Wills can be drafted to ensure, should you survive your spouse/partner, you will be looked after in the most effective and protective manner possible.

Making or reviewing your Will gives you a chance to review your circumstances.

Do you have a Property & Financial Affairs Lasting Power of Attorney?

No? Make one. Yes? Review it.

Appoint people of your choice to act on your behalf in relation to your property and finances. If you begin to find things difficult they can act for you and can continue to act should you lose capacity. This could allow something as simple as an overdue gas bill to be paid or for assets to be liquidated to provide care.

A word on restrictions: they are best avoided. Restrictions inhibit the ability of your chosen attorneys to act. They cause delay and expense. For example, if you specify that your attorneys are not allowed to sell your house and they need to it will not prevent them – rather they will have to apply to the Court of Protection to obtain an order enabling them to sell the property.

Do you have a Health & Welfare Lasting Power of Attorney?

No? Make one. Yes? Review it.

Who do you want to make decisions about your future health and welfare? People you know and trust? Or someone who does not know or understand your wishes?

Check your finances…

If you need care, whether at home or in a residential or nursing setting, your local authority will carry out a financial means test. You may have to use your savings to meet the cost of care.

Assets held in joint names will be assessed 50/50 by the local authority and not proportionately according to contribution. Consider splitting your savings accounts proportionately. Should you also split the ownership of your house to ensure it is not all lost in care fees?

Are you claiming all the benefits you are entitled to?

Check. Not all state benefits are means tested. Some are based on need and not finances.

Different benefits apply to different age groups. Extra funds could enable additional support to be brought in to help at home. Benefits are payable, in certain circumstances, when an individual resides in a residential or nursing home.

Keep an eye on continuing care….

The most poorly receive continuing care – whether you are living at home or in a residential setting.

If you fall within the most severe categories for health and nursing needs, Clinical Commissioning Groups (CCGs) have to pay for nursing care. When awarded continuing care covers the majority, if not all, of a person’s care costs.

Payment is dependent upon condition – if your condition improves it can be withdrawn. It can be claimed at any time, even by the executors of their estate following death.

Dealing with the above can free up your time and energy to deal with daily challenges that arise with dementia. Get things in place as soon as possible. Capacity is the key issue – as long as capacity is present instructions can be taken.

As always, the information above provides background information only and should not be relied upon as an exhaustive list of the legal issues involved.

Contact us for advice, support and guidance – it’s what we do:

T: 01227 700 702

E: info@argolifeandlegacy.co.uk

W: www.argolifeandlegacy.co.uk

Published by Kelly Duke 17 June 2015

 

Why won’t the OPG register my LPA?

Thousands of Lasting Powers have been successfully registered at the Office of the Public Guardian (OPG) since the Mental Capacity Act 2005 came into effect. However, there are many that have not made it.

Amended forms, introduced in 2009, have helped reduce the rejection rate but problems still arise. Many fear that with the promotion of online forms rejection rates will increase again. To help you avoid some of the hurdles here’s a run through of the common problems and misconceptions:

Surely the OPG can just fix minor errors? The OPG maintains the register of Lasting Powers. They have a duty to register a valid Power and not to register an invalid one. They do not have power to make decisions about defective forms and cannot amend forms that are presented to them.

The Regulations provide that each part of the Power has to be completed in turn. If information is missing it cannot be inserted at a later date – because the section of the form was has to be completed in sequence.

The Regulations do not allow for insertion of information once the power has been signed. Even if a sworn statement is provided with the missing information it will not be accepted. The only solution is to start again from scratch. This may not be possible if the person creating the Power is losing their capacity.

Use the prescribed form! If you do not use the right form the OPG will reject it and you will have to start again.

Execute carefully! If a Power has not been correctly signed by the Donor, Attorneys and/or Certificate Provider it will be defective. Again, you will have to start from scratch. So take the time to check, double check and triple check.

Restrictions: Using invalid restrictions and conditions when appointing Attorneys is a common problem with Lasting Powers.

Often they are incompatible with the appointment of Attorneys. For example, appointing Attorneys jointly means they have to act together all of the time. If one jointly appointed Attorney dies then the appointment of all Attorneys fails. If you impose a restriction that a majority of two of three Attorneys can make decisions it will fail because it conflicts with the appointment which is joint – all three must act.

Authority to make gifts: Attorneys can make gifts up to certain limits. You might want to give your Attorneys authority to make larger gifts but this is not permitted within a Lasting Power. Instead an application to the Court of Protection for approval will be needed.

Certificate Providers cannot be anyone: A Certificate Provider cannot be a family member of the Donor or the Attorney. An in-law is also not eligible.

A Certificate Provider must have either known the Donor of the Power for at least two years or have the requisite level of professional skills to take on the role. Any old lawyer won’t do – you need someone with relevant expertise and experience (like us!).

Named Persons: Including an Attorney as a Named Person, to be notified when the Power is registered, leads to rejection by the OPG.

Replacement Attorneys: You are only able to appoint Replacement Attorneys for your first choice Attorneys.

Replacements cannot replace replacements. You need to be very clear when you want your replacements to act. If you say nothing to the contrary a Replacement Attorney will step in to act when your first choice Attorney is unable to act. But they will only have authority to act once the Power has been re-registered.

If a Replacement Attorney is to act in any other circumstance you must detail this in the Power.

Severance: In some circumstances the OPG can sever the terms of appointment of Attorneys.

Or they may recommend an application be made to the Court of Protection. The Court of Protection can then issue directions and/or an Order as appropriate.

Health & Welfare LPA – life sustaining treatment: When you complete a Health & Welfare Lasting Power of Attorney, it is vitally important that you make a decision on whether you want your Attorneys to have the power to give or refuse consent for life sustaining treatment.

If you do not indicate an option your Attorneys will not to have this power.

A rejected Power can mean that nobody is appointed to help a Donor with financial or health and welfare matters at a critical time. It is worth stating the obvious – it’s important to get it right!

We advocate registering Powers as soon as they have been completed. You only have an effective Lasting Power when it has been successfully registered with the OPG. The alternative is a Deputyship Application to the Court of Protection which is both a costly and lengthy process best avoided.

Contact us for advice, support and guidance – it’s what we do:

 T: 01227 700 702

E: info@argolifeandlegacy.co.uk

W: www.argolifeandlegacy.co.uk

Published by Simon Crooks 15 June 2015

 

To Will or not to Will?

What happens if I die without one?

A professional drawn up Will can provide peace of mind that your estate will pass to the people you want it to. It can also avoid a lot of unnecessary expense and heartache for those you leave behind, at what can already be a difficult time. Yet many die without having made a Will.

If you do not leave a Will who gets what depends on:

  • how you own your property (whether in your sole name or with others)
  • the value of your assets; and
  • the relatives you leave behind

Even if you are married or in a civil partnership your spouse or civil partner may not automatically inherit your entire estate. The points set out here apply equally to civil partners when we refer to spouses.

The following situations arise which many feel result in a surprising distribution of your estate:

  • Unmarried couples have no right to benefit from assets owned solely by their partner. This is the case even if they have lived together for many years. Other living relatives would benefit instead. This may lead to financial hardship for the surviving partner, if even only for a short time, whilst either an agreement is reached with the relatives or a court makes a decision, if the surviving partner feels they need to make some claim against their partner’s estate.
  • If you are married or in a civil partnership and have children and your assets are worth over £250,000 then the children are entitled to part of the estate. When house values are taken into account this £250,000 threshold can be easily reached. If the survivor does not have sufficient assets it may require court hearings, particularly if the children are under 18, to re-distribute the estate.
  • Even if your assets pass to your spouse would you be happy for it to eventually pass to your partner’s side of the family on their death and for your side of the family to be disinherited?
  • Many people are survived by a mixture of brothers and sisters and half-brothers and sisters who they look upon equally yet it will only be the brothers and sisters who share the same mother and father who will benefit: half-siblings only inherit if there are no living brothers or sisters or their children.
  • Depending on the value of an estate it may result in inheritance tax becoming payable even where the deceased leaves a surviving spouse. This is likely to be avoided where a correctly drawn will is left.
  • Where there is a spouse they receive the personal effects. If children are left too, then the spouse receives the first £250,000 and the remainder is split between the survivor and the children.

Expense can be incurred by the need to negotiate with other family members and possibly the need to proceed all the way to court where either a compromise cannot be agreed or where the court has to be involved. The expense involved in this type of negotiation far exceeds the cost of having a professionally drawn up Will.

Death is often a time when emotions run high and having the added difficulty of an unknown financial future can add to the burden.

So, why leave a potential problem for your nearest and dearest when you could have a Will prepared to ease many of the problems that arise on intestacy?

Call us to draw up your Will today – it’s what we do.

Published by Simon Crooks 10 June 2015

Lasting Powers of Attorney

This is a recent article which was published in the Petham and Waltham Parish News…….

As you will have read Advance Decisions are legally binding and enable you to refuse specific medical treatment. With an Advance Statement you can set out your preferences, wishes, values, and beliefs about your future care – this is not legally binding but it must be taken into account.

Lasting Powers are legal documents through which you give people you trust (your attorneys) authority to make decisions on your behalf. These are powerful and valuable documents which should be entered into with care.

The potential for loss of mental capacity is not limited to later life – this is something that everyone should put in place. The key benefit is enabling people you trust to take action on your behalf when you are unable to.

If Powers are prepared earlier in life they will give the same protection in the event of incapacity as the result of illness or accident. Making a Power now does not mean that you give up any of your own rights, just that you have an arrangement in place enabling your chosen Attorney to take responsibility for some or all of your affairs if you need them to.

There are two types of Lasting Powers:

  • Property & Affairs: enables your attorneys to deal with your property and finances; and
  • Health & Welfare: authorises your attorneys to make welfare and healthcare decisions on your behalf, but only when you lack mental capacity to do so yourself. This also extends, if you wish, to giving or refusing consent for the continuation of life sustaining treatment.

You should take care over who you appoint. They should be trustworthy and have appropriate skills to make the proposed decisions. You can and should wherever possible appoint more than one attorney and you can require them to always act together (jointly) or preferably together or separately (jointly and severally). You can appoint them to act jointly for some things and jointly and severally for others but this should only be considered after taking advice, as it can cause difficulties. You can also appoint successors to your attorneys in case they are unable to act.

The Attorneys can only act when your Lasting Power:

  • has been signed by you and your attorney(s); and
  • has been certified by an independent person (the certificate provider) that you: understand the nature and scope of the LPA; have not been unduly pressured into making it; and there has not been any fraud or another reason why you cannot make it; and
  • has been registered with the Office of Public Guardian.

The financial Power can be used both when you have capacity to act and if you lack capacity to make a financial decision. The welfare power can only be used if you lack capacity to make a welfare or medical decision. Following the Mental Capacity Act 2005, capacity is assessed on a decision by decision basis.

It is worth planning ahead. When someone becomes incapable of managing their affairs it can be a very difficult time for all concerned. At least with Lasting Powers in place issues can be dealt with more easily.

Let us help you prepare your Lasting Powers – contact us on 01227 700 702 or email info@argolifeandlegacy.co.uk

Published by Simon Crooks May 2015

Support for you & your family

People are living longer than ever before and needing more care. Parents are faced with having to look after their children and also their parents whilst trying to hold down full time jobs. Finding the right kind of help and support is a minefield.

Here is a recent example of how we can help. Molly and Bill were diagnosed with cancer – Bill some years ago and Molly only last year. Molly deteriorated rapidly and died just after Christmas. Bill had tried looking after Molly during her deterioration but, although he tried to hide it, the truth was that he was having trouble looking after himself. After Molly died her son contacted us to help with her estate and to look at planning for the future.

We gave advice on ways to mitigate any likely tax on Bill’s death and we put up to date Wills and Powers of Attorney in place for all the family. More importantly we looked into Bill’s care arrangements. Bill was now living alone in a property unsuitable for him. The bathroom facilities were on the second floor and he struggled with stairs. He needed someone to be there to cook and help take care of him without robbing him of his independence. Fundamentally, he did not want to leave the house which he and his wife had bought together.

We worked with Bill and his family to put a care package together to ensure that Bill would have his wish. We looked into an equity release to provide funds for care and to make alterations to the property (such as fitting a stair lift). We arranged for care at home to be provided and check-up calls to be made on a daily basis. All of this could have been done by Bill’s son but he and his wife have full time jobs and young children to look after. We were able to give them peace of mind and lighten the load. The time they spend with Bill is now truly quality time – they do not need to worry about his care because it is all taken care of – if any problems do arise they simply contact us.

For more information call us on 01227 700702 or email simon@argolifeandlegacy.co.uk