How the law could help families keep more memories alive

If I asked you to list everything you own, would you think about the camera roll on your smartphone?

People tend not to see digital assets, like photos, music playlists, social media accounts, as ‘assets’ in the usual sense. Aside from cryptocurrency, these things may not hold a recognisable financial value or represent something similarly tangible to a home, an engagement ring or money in the bank. But digital assets exist, and they outlive their creator or owner. And for loved ones left behind, digital assets maintain an important connection to the person they have lost.

As the number and types of digital assets have grown, so too have issues encountered by people who want to access them following a person’s death. For good reason, password and data protection is robust. And while it would seem sensible to allow a daughter to access the photos on her deceased mother’s phone, or a widower to get into his wife’s Facebook account, this has historically been less than straightforward. It is a situation that has increased the pain and suffering felt after a loved one’s passing. And it has led to a Private Members’ Bill that is making its way through parliament.

The Digital Devices (Access for Next of Kin) Bill would give a grieving relative the right to access their loved one’s digital data. It also places an onus on tech companies to facilitate this, by unlocking devices for which people don’t have access codes.

The Bill has some way to go before becoming law, but I very much hope that its journey leads to these significant changes being made. Clients who come to see me after the death of a loved one are often overwhelmed by the formalities that need to happen. Everything, from the clearing out of clothes from the wardrobe, to the gathering in and division of assets and liabilities, places a strain on already fragile people who are doing their best to get through the hardest of times. To then be faced by a brick wall when attempting to retrieve their loved one’s digital data has felt an unfair additional challenge.

So, the Digital Devices Bill is something I wholeheartedly support. It should remove a significant disadvantage currently suffered by families who simply want to keep memories alive and prevent digital assets from becoming lost. But there are also things that each of us can do now to make the future process of administering our estates as straightforward as possible for our loved ones.

I would urge anyone preparing for the years ahead to get specific advice on how best to deal with digital assets as part of the process of writing a Will or a Lasting Power of Attorney. (It’s important to understand, as a starting point, whether each of these assets is owned outright by you, or whether it is licensed to you, for example.) Working through this now will reap rewards, leaving fewer difficulties for loved ones to navigate in the years to come.

For advice about organising your affairs, or specifically about digital assets, contact Emma Howlett or a member of the Private Client team on 01892 577092.

Why a Small Payments Scheme could have a big impact

Anyone who has tried to deal with financial matters on behalf of someone else will know just how many barriers are in place. While there are very good reasons for this, it can be hugely frustrating for well-intentioned family members who simply want to access funds for their loved ones’ benefit.

The Mental Capacity Act 2005 was designed to give some regulation and definition to the issues around supporting people who may lack mental capacity, to make their own decisions, in their own best interests. The law around capacity is famously grey and uncertain, meaning that families/friends and professionals face a potential minefield when it comes to managing the financial affairs of someone who has lost capacity, either temporarily or permanently.

The overarching point is that the correct authority to act for someone who does not have capacity must be in place, if action is required. In some cases, that may be provided through an Ordinary Power of Attorney (OPA), but this can only be made while the person making the OPA (‘the Donor’) has capacity and is only valid while the Donor retains capacity. It is normally used to manage specific tasks that the Donor wants someone to deal with for them, such as the sale of a property or the paying of bills while travelling etc. OPAs are far less frequently used than Lasting Powers of Attorney.

A Lasting Power of Attorney is created while the donor has capacity and its primary difference to an OPA is that it ‘lasts’, which means that it can still be used if or when the donor loses capacity. People make Lasting Powers of Attorney to appoint their attorneys (often a family member or friend) with the intention that they will take over the responsibility for making various decisions over the Donor’s property and financial affairs. Attorneys can act under a Property & Financial LPA while the Donor has capacity and when the Donor has lost capacity.

There is a Health and Welfare LPA, which, unlike the Property and Financial LPA, can only be invoked and used when the Donor has lost capacity or is unable to speak for themselves in terms of their health and welfare needs.

Problems arise where neither an OPA nor an LPA has been prepared and there is no one ready and authorised to step in. Where someone has lost mental capacity, this can be a particularly difficult situation to work through and it often requires the involvement of the Court of Protection to resolve.

The Court may make a ‘one-off order’ relating to a particular decision that needs to be made, or appoint people (‘deputies’) to act in the best interests of the mentally incapacitated person. The role of a deputy is similar to that of an attorney appointed under an OPA or an LPA.

The trouble is that the Court route is often lengthy, costly and it may not be in the best interests of the loved one who needs taking care of.

In some situations, those caring for a person who has lost mental capacity simply need to access small amounts of money, fairly quickly, to meet that person’s needs. It is this issue that has become a focus for the Ministry of Justice, which is currently consulting on proposals to introduce a ‘Small Payments Scheme’.

What would a Small Payments Scheme mean for someone caring for a mentally incapacitated person?

The idea is that they could access small amounts of a mentally incapacitated person’s money without having to go through the process of getting an order from the Court of Protection. It would be an interim measure; something to have in place before long-term arrangements were finalised. The Ministry of Justice points out that the Scheme would be useful in situations in which families, friends and carers find the Court of Protection route ‘too complex or disproportionate to the amount of funds involved’.

The proposals include that:

  • Payments (of up to a combined sum of £2,500) could be made for a six-month period from one account
  • It would be possible to extend those six months once if the £2,500 figure had not been reached
  • The Scheme would be run by financial services firms, such as banks and building societies
  • The Scheme could be used by ‘someone who could prove their suitability, rather than just family members’

The consultation will be open until 12 January 2022, although there is some way to go before we will begin to hear how the views of participants could shape these proposals. A key consideration will be the Scheme’s security, as well as its ability to provide a simpler, faster and more straightforward process to navigate than that which is currently in place. But, as a lawyer who regularly helps families navigate these challenging issues, and as someone who personally manages the affairs of someone who has difficulties, I welcome the attempt to clarify and improve things for those trying so hard to serve and protect a loved one’s best interests.

For advice about OPAs, LPAs or Court of Protection applications, contact Vicky Mansell on 01892 577092 or email vicky.mansell@thomasmansfield.com.

Protecting Britney – the difficult question of control

The much-publicised situation surrounding the private life of Britney Spears has made for illuminating reading for those unfamiliar with the US system of conservatorship.

Following concerns about the singer’s mental health more than a decade ago, the court-ordered arrangement was put in place which saw control of decisions about aspects of her life passed to her father. There have since been various claims that that conservatorship has taken away some of Spears’ human rights, and that too much control has been placed in the hands of others. The #FreeBritney movement has campaigned for the conservatorship to be brought to an end. And it’s been reported that Jamie Spears, Britney’s father, has now filed for that to happen.

Press reports of the types of restrictions placed on Britney, and of her feelings about the conservatorship, have been an uncomfortable read. We don’t know the facts; the details of the arrangement remain private. But for those of us who work to safeguard the best interests of vulnerable people, we’re confident that a situation like that of Britney Spears could be avoided in the UK.

We don’t have conservatorships in England and Wales. Our system is based around the Court of Protection, which steps in where necessary (and where there is no Power of Attorney in place) to protect vulnerable people who can no longer make informed decisions for themselves. The court decides whether or not the person has mental capacity, and appoints ‘deputies’ to make decisions for him or her if capacity is considered to have been lost.

‘Deputyship’ is therefore our version of conservatorship. It is the appointment of one or more adults – usually a family member or friend of the person who has lost capacity – to take care of decisions about health and welfare and/or property and finances. Deputies become responsible for deciding everything, from what should happen to the person’s investments, to where they should live and the healthcare they should receive. (An alternative would be to have an ‘attorney’ appointed under a Power of Attorney, or a Lasting Power of Attorney.)

Deputies don’t have to have any particular qualifications. Sometimes legal or financial professionals are appointed, but this isn’t always necessary. The overriding duty is for the deputy to act in what they reasonably believe to be the best interests of the mentally incapacitated person. Working out what is and isn’t in a person’s best interests may not always be straightforward, and deputies sometimes have a challenging time in deciding how best to handle particular situations. But guidance comes from the Mental Capacity Act, which includes that decisions must not be based:

  • merely on the basis of a person’s age or appearance; or
  • on the condition of, or an aspect of, the person’s behaviour which might lead others to make unjustified assumptions about what might be in their best interests.

Another key principle is that when deciding best interests, steps must be taken (where possible) to allow, encourage or help the person participate as fully as possible in any act done for him and decision affecting him. This is hugely significant, as it seeks to avoid a situation in which a deputy effectively railroads decisions. It reminds deputies that the mentally incapacitated person is the focus and may still have a voice.

There are some additional layers of protection, too. Deputies are expected to file information – including expenditures made – annually, documenting the decisions they have made. And this is overseen by the Office of the Public Guardian.

No legal system is without fault, but having worked with families to take care of loved ones, it’s clear to me that the Court offers vital protection for those most in need. It firmly places the needs and interests of the mentally incapacitated person at the heart of decisions. And I think people and families should take comfort from this. If mental incapacity strikes, there will be layers of support in place.

To talk in confidence about mental capacity, deputyship or about making a Lasting Power of Attorney, contact Emma Howlett on 01892 577092 or email emma.howlett@thomasmansfield.com.

My father is becoming forgetful. Should we be thinking about legal protections for him?

It is always concerning when a loved one appears less able to do things they once could. While slower bodies and minds are the unavoidable byproduct of ageing, you are certainly right to be thinking about the possibility that your father may at some point need greater help from those around him.

Depending on your father’s condition, you may want to look into any care needs he has now, and those he might need before too long. Is he living alone? Is that safe for him? Should you be thinking about lining up a different arrangement?

And one of the things I think you should definitely be considering is a Lasting Power of Attorney (LPA). This is a legal document that appoints someone, or more than one person, to take control of decisions about the day-to-day life, finances and wellbeing of someone who has lost mental capacity. There are two types of LPA: one for health and welfare, and one for property and finance. Quite often, the same attorneys (usually family members) are appointed in respect of each.

An LPA is made while a person still has mental capacity, and usually comes into effect if that capacity becomes lost. Timing is therefore extremely important. There is no point in thinking about the LPA option once a person no longer has mental capacity; they have to be shown to have the ability to make decisions for themselves in order to make a valid LPA.

Where a person has simply become forgetful, it is unlikely that they have lost mental capacity. The time would therefore be ripe to help put an LPA in place for your father.

What is mental capacity?

Mental capacity is someone’s ability to make a decision. Incapacity strikes when decisions can’t be made because of a temporary or permanent impairment of, or a disturbance in the functioning of, the mind or brain.

Being ‘unable to make a decision’ means not being able to understand relevant information, retain that information, use or weigh that information, or communicate the decision.

Why have a Lasting Power of Attorney?

If a person loses the ability to make decisions, the next best thing is for someone they know and trust to do that for them. An LPA allows this to happen very easily.

When someone loses mental capacity without having an LPA in place, there will usually need to be an application to the Court of Protection. That is the specialist court responsible for taking care of people who have lost mental capacity. It can appoint ‘deputies’ to act in much the same way as attorneys under LPAs and make decisions in the person’s best interests. A major difference, however, is that the person in whose interests decisions will be made has at that point no say in who becomes his or her deputy, whereas the ability to nominate attorneys via an LPA places that control firmly in the hands of the person at the centre of it all.

What about a Will?

An LPA is not an alternative to having a Will. The two documents do different things, and ideally people should have both in place.

While few people feel completely comfortable discussing Wills and other future plans with parents, it really is a good idea to bite the bullet. Encouraging loved ones to think ahead and to talk about the arrangements they have and could put in place can make so many things far easier in the long run.

To find out more about LPAs, Wills and future planning, or for advice on your particular situation, contact me on 01892 337540 or at emma.howlett@thomasmansfield.com.

Latest statistics show 18% drop in LPA applications and a jump in digital applications and grants of Probate

The Ministry of Justice has released the Family Court statistics for January to March 2021, revealing that there were 195,734 LPAs received, down 18% compared to the equivalent quarter in 2020.

LPA applications had been steadily increasing, peaking in 2020 – largely brought about by increased publicity and the new online forms introduced in July 2015, making it simpler and faster to apply. As the pandemic took hold LPA applications declined and the first quarter of 2021 saw a significant drop.

Private Client legal adviser at Thomas Mansfield, Emma Howlett, said:

‘The latest UK-wide statistics are interesting. At Thomas Mansfield we have in fact seen a surge of interest in LPAs over the the last 18 months. As much as the pandemic has brought normal life to a halt, it has also sharpened focus on what matters. The future is uncertain and an LPA is a great provision to have made, in the event that you somehow lose the ability to take full care of your property and finances and/or your health and welfare. While the UK-wide statistics show a drop in LPA applications we expect this to increase as the UK exits lockdown and normal life resumes.’

The Family Court statistics also pointed to an increase in the proportion of digital applications and grants issued for probate. Since the Court introduced the online system, simple applications where the person died testate and there are no issues with the Will, have been dealt with efficiently and more quickly than paper applications.

However, the Family Court statistics for the first quarter of 2021 show that where a case has been ‘stopped’ for any reason (in the case of a dispute, issues with a Will or proposed Will, or if an error is identified and a request for further information made), probate grants took 13 weeks on average to be issued, compared to 5 weeks for those that were not stopped.

The full report is available at Family Court Statistics Quarterly: January to March 2021.

How are ‘best interests’ determined?

Mental capacity is easily taken for granted. For those who have always been able to make decisions about their life, their money, their health and wellbeing, it’s not easy to imagine that being taken away.

But this happens. Whether through an accident or illness, someone can lose their mental capacity – instantly or gradually. And the repercussions affect not just the person at the centre of this, but also their loved ones who usually step in to take control of, or oversee, decisions that need to be made. These decisions include everything from what the person should eat from day to day, to whether they should sell their house and move into a care home, to what medical treatment they should receive.

Underpinning each of these decisions is one consideration: best interests. What would be in the best interests of the person who has lost mental capacity?

While best interests are sometimes easy to determine, there will be times when those responsible for making decisions will be unsure about what to do. In those situations, it can help to go back to the basics. And that starts with a piece of legislation called the Mental Capacity Act.

What best interests should not focus on

The Act says that decisions about best interests must not be made merely on the basis of a person’s age or appearance. Nor about the condition of, or an aspect of, their behaviour which ‘might lead others to make unjustified assumptions about what might be in his best interests’.

Steps to take when deciding best interests

All relevant circumstances must be taken into account, and the following (in particular) must be considered:

  • whether it is likely that the person will at some time have capacity in relation to the matter in question, and
  • if it appears likely that he will, when that is likely to be.

Steps must be taken, where reasonably practicable, to allow, encourage, or help the person to participate as fully as possible in any act done for him and any decision affecting him.

Things to take into account

  • The person’s past and present wishes and feelings. In particular, if the person made a relevant written statement when he had capacity, that should be considered.
  • The beliefs and values that would be likely to influence the person’s his decision if he had capacity.
  • Other factors that the person would be likely to consider if he could.

The decision-maker should also take into account the views of anyone named as someone to be consulted on best interests in the particular circumstances. Also, anyone involved in caring for the person or who is interested in his welfare; a person appointed under a Lasting Power of Attorney (LPA); and a ‘deputy’ appointed by the Court of Protection.

But how is the ‘best interests’ duty discharged? How does a decision-maker know that they have done the right thing? In some circumstances there may never be a clear answer to that. The most he or she can do (and this is set out in law) is to reasonably believe that what they do or decide is in the best interests of the person.

That is a point that should resonate with anyone who is considering putting plans in place for whatever the future may hold. Lining up a decision-maker to take control of your financial and property affairs and your health and welfare is a key aspect of this. It means you have someone you trust – and who you know will exercise their powers wisely – to take care of you, in the event that you lose your mental capacity. This is done via an LPA, the alternative to which is relying on the Court of Protection to appoint a deputy to safeguard your best interests.

Clients who make an LPA tell us they feel reassured to have their chosen attorney in place; someone they can count on to weigh up the pros and cons and to take the ‘right’ action. It’s future planning that we should all consider putting in place.

To find out more about making a Lasting Power of Attorney, or for advice about mental capacity, get in touch with me on 01892 337540 or at emma.howlett@thomasmansfield.com