Legal Advice for Carers
It’s natural to look after our parents, especially as they advance in years. It’s important to know about the legal side of things and find out how you can help your nearest and dearest sort out all of the things that need dealing with.
Often these subjects can be very difficult to broach and there is a natural tendency to put it off until tomorrow. At Autumn Years Law we can assist you in helping your loved ones plan for these things by helping them to plan for their future so that they can carrying on enjoying their today.
We are experienced and skilled in helping people with the following legal areas:-
Lasting Power of Attorney
A Lasting Power of Attorney enables an individual to chose who they wish to legally deal with their affairs in the event that they are no longer able to do so themselves. There are two types of Lasting Power of Attorney – one that deals with financial property and affairs; the other deals with health and welfare issues.
A Lasting Power of Attorney can only be made when the individual has capacity to create a Lasting Power of Attorney – in order words can only be made when it isn’t necessarily needed it, but sadly sometimes when one is needed the individual might not have capacity to make it.
Neither type of Lasting Power of Attorney can be used until the Office of the Public Guardian has registered it. Due to the volume of applications it is currently taking the Office of the Public Guardian up to eight weeks to register these documents. By pro-actively having a Lasting Power of Attorney waiting in the wings (a bit like a pilot light on a boiler) your nearest and dearest can have the peace of mind of knowing that the legal documentation is available for use as soon as the need arises (this can be invaluable in emergency situations).
Please note that an attorney cannot make a Lasting Power of Attorney on behalf of someone else. Our client will be the person making the Power of Attorney (called the ‘donor’) and we will need to discharge our professional obligations to our client. Click here for more information about Lasting Powers of Attorney.
Registration of Enduring Powers of Attorney
Historically people used to be able to make an Enduring Power of Attorney. Provided the Enduring Power of Attorney was validly made before 30 September 2007 it will probably still be valid. If so, the named attorney’s are able, with the consent of the person making the appointment (called the donor) to use the power to assist the donor. Provided the donor retains capacity the attorney’s are able to use the power without it being registered at the Office of the Public Guardian.
If the attorney’s are aware that the donor is becoming or has become incapable of dealing with their financial affairs the attorney’s are under a legal obligation to register the Enduring Power of Attorney with the Office of the Public Guardian. There are strict rules regarding the application process regarding who must be notified about the registration, which must be adhered to. Autumn Years Law can assist with all aspects of the registration, including ensuring that all of the formalities of registration are dealt with in a correct and timely manner.
Court of Protection / Deputyship
Sometimes it is not possible for an individual to create a Lasting Power of Attorney and that person might no longer retain the capacity to deal with their financial affairs. This can be problematical as care fees and other routine outgoings might need to be paid but nobody holds the legal authority to assist them.
In this circumstance it is necessary to apply to the Court of Protection for someone to be appointed as a ‘Deputy’ to manage the individual’s financial property and affairs. Autumn Years Law can assist you with all aspects of the application process and also provide you with practical advice and guidance to assist at what is often a difficult family time. For further information call Liz on 01704 870404.
It is important for an individual to have a valid Will which reflects what they want to happen to their estate when they die. If you are acting as their carer and receive a disproportionate amount of their estate when they die, other disgruntled beneficiaries might challenge the validity of the Will. To avoid disputes it is important that the individual obtains independent legal advice to ensure that their Will reflects what they truly want and reduce the risk of a challenge to the Will after they have died.
Another situation might be if one parent has gone into care but the other remains at home. It might be appropriate in such circumstances for them to consider re-structuring their Wills so that a large financial sum does not pass outright to the care-home recipient, only for it to be swallowed up in care fees. At Autumn Years Law we discuss the options available to protect family assets whilst also making sure provision is still available during the survivor’s lifetime.
Please note that whilst your loved one might be frail and find it reassuring having a family member assist them, our client will be the person making the Will. It is essential that Autumn Years Law are able to discharge their professional obligations to the client. As a fully accredited member of Solicitor for the Elderly, solicitor Elizabeth Foggin has years of experience in advising older and vulnerable people on this area of law. Liz is able to provide sympathetic jargon-free advice to ensure that their decisions are their own, whilst retaining their respect and dignity.
Elderly Care Advice
We are a proud species and sometimes legal advice is not sought until a crisis situation arises. Perhaps mum or dad is about to be discharged from hospital but are unable to go home and suddenly need residential care or rehabilitation. Maybe they’ve been placed under a Mental Health Act sectioning order.
Not only are you dealing with the emotional upheaval of their situation but suddenly you are thrust into the world of NHS and Social Services funding arrangements and need some guiding help and support to assist you in understanding your parent’s rights and entitlements to care, care funding and the way forward. For immediate practical help call Liz on 01704 870404.
I’ve been appointed as someone’s attorney – what can or can’t I do?
Being appointed as someone’s attorney is a very responsible position. Sometimes it can be a bit daunting. Other times you might be conscious of other family dynamics that have come into play. It is important that you are familiar of what you can and cannot do as someone’s attorney.
It is imperative that you do not mix their money with your own money and that you keep proper records, which you are legally obliged to do. We can assist you with keeping proper accounts.
Whilst being responsible for managing another individual’s affairs you must always have regard to what is in their best interests and consider to what extent the individual is able to be involved in the decision in question or when perhaps other people might need consulting.
Do bear in mind that as an attorney you can only make gifts on the donor’s behalf on (i) customary occasions to persons who are related to or connected to the donor; or (ii) to any charity to whom the donor made or might have been expected to make gifts. This is provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the size of the donor’s estate. If the donor’s circumstances are as such that lifetime planning would be appropriate Autumn Years Law can assist with ensuring such strategies are dealt with legally and not open to challenge or abuse.
Another situation may arise where a family member wishes to purchase the donor’s home, or it needs to be sold at an amount that is lower than the general market value. In both of these circumstances it will be necessary to get authority from the Court of Protection to enable the sale of the donor’s home to proceed.
For further advice and guidance on any of the above call Liz on 01704 870404.