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.

The case for thinking ahead

Most of us have the luxury of personal autonomy. We can decide how we live, where we go, what we do. We make choices for ourselves – some big, some small – every day.

But imagine if this were all taken away. Imagine becoming unable to make important decisions, or to communicate your wishes to others. Imagine if dementia were to take hold, or an accident were to rob us of our mental capacity.

These aren’t thoughts to dwell on, but it really does make sense to give this some consideration. After all, none of us can know what the future has in store. And steps can be taken now – while still able – to make clear what you would, and wouldn’t, want to happen in the event that you become forced to rely significantly on others.

This applies to all aspects of life, but it’s perhaps particularly important when it comes to health and welfare. We all want to be able to have some say in the medical treatments we receive, and in the care given to us. But the reality for some people is that their condition doesn’t allow that.

A living will has been a reliable way of a person setting out certain instructions about big health decisions that may have to be made about them. An enforceable legal document, it lets the health professionals caring for you know how you feel about the idea of receiving treatment while in a state where you can’t make those wishes known. Essentially, it enables you to refuse certain types of treatment, such as CPR.

In recent years, there has been a trend towards Lasting Powers of Attorney (LPAs) as opposed to living wills, although there is no reason why you can’t have both. In fact, they do different things. While a living will says what you want to happen in specified circumstances, an LPA appoints a person or people to make those types of decisions on your behalf if you become unable to do so. It places choices about your life and your care in the hands of people you trust, asking them to make the call on the medical treatment that should and shouldn’t be given to you.

The crossover with a living will is in the background knowledge that the attorneys have. For example, you may have told them (or even set out in your LPA) that, if situation x arose, you wouldn’t want to be resuscitated. The attorneys’ decision is therefore likely to be influenced by that. But, unlike with a valid living will, an LPA doesn’t tie the medical professionals’ hands in having to carry out your wishes if those wouldn’t be in your best interests.

 If you have both a living will and an LPA in place, it’s really important to consider the effect of one on the other. It comes down to timing; where one contradicts the other, the more recent document would apply. This could mean that wishes set out in a living will are superseded by a subsequent LPA. A ‘do not resuscitate’ instruction in your living will could be overridden by a later LPA in which you give authority to your attorneys to make that decision. Ideally, that situation would be avoided by specific wording that enables the two documents to work together.

These are all things your solicitor will discuss with you. We advise clients throughout the process, from the types of wishes they’d like to express, to the way in which they would like to do that. We also help them think about how best to broach the subject with those close to them. This is a really important aspect of these types of future plans. In our experience, clients who put a living will in place tend to be firmly fixed on the idea that, if terminally ill and in a non-communicative state, they would not want to be kept alive. They feel relieved when those wishes are put in black and white, and are keen to pass their living will to their GP and to loved ones. But family members are often not able to handle that information in the way their relative does. The same can be true of LPAs; loved ones may struggle to deal with the thought of a family member becoming incapacitated.

That is why it’s usually best to speak with those close to you about your plans; let them know how you feel, and definitely don’t spring a living will or an LPA on them. It can be useful to also talk to a medical professional about your plans, as they may be able to offer good advice from a healthcare perspective. It’s really about making an informed decision and keeping the important people in your life informed too.

Some people will decide to make a living will or an LPA after being diagnosed with an illness. Others will simply see it as a form of future planning, alongside their will and their trusts. But every situation calls for a clear and careful steer on the terms that will be put in place and what these would mean for the person making the living will or LPA, and those close to them.

It’s also crucial to remember that, once in place, these documents stand (subject to one being superseded by the other). That is why any change of heart should be acted on. Keeping your living will and LPA current and in line with your up-to-date wishes is vital. So we always recommend that clients revisit these documents periodically, and urgently if they have any second thoughts.

We’re currently offering a simple Lasting Power of Attorney for a fixed price, starting from £350 plus VAT.

To find out more about making a living will or an LPA, or any other future planning, contact me on

01892 337540 or at emma.howlett@thomasmansfield.com

Have you made a Lockdown LPA?

 As much as this pandemic has ground lots of things to a halt, it has sharpened focus on others. As a nation, we’re getting back to some basics. We’re seeing what really matters. And many of us are using whatever extra (or differently spent) time we now have to getting round to doing things we’ve long put off.

People are making Wills – something we encourage everyone to do, whatever stage of life you’re at. And we have also seen a surge of interest in Lasting Powers of Attorney (LPAs). This all bodes extremely well for those who now have plans in place for the years ahead, and the peace of mind that comes with that.

The future is uncertain; we all know that. And that’s one reason why an LPA is a great provision to have made. It’s a legal document that specifies who should become your ‘attorney’ or ‘attorneys’ in the event that you (the ‘donor’) somehow lose the ability to take full care of your property and finances and/or your health and welfare. An LPA typically becomes relied on when a person loses mental capacity (the legal term for being unable to make decisions in their best interests) through illness, old age or an accident. It means that the nominated attorneys can immediately step in and start making decisions and taking actions on their behalf.

People tend to think that the loss of mental capacity is something more likely to happen at a later stage in life, but it could affect anyone at any time and at any age.  So it pays to be prepared for what may or may not be around the corner. In fact, an LPA can play a really important role for each of us now – during the pandemic. Where a donor still has their mental capacity but is simply incapacitated for a period of time, their attorneys can assist with day-to-day things he or she is not able to do. So, people who become hospitalised through Covid or another illness could benefit from having an LPA in place. Similarly, it can be helpful for elderly and vulnerable people who are isolating to have an appointed attorney who can help with important legal, financial and health matters. It means the best interests of a person who is unable to leave their home or hospital bed can be protected.

As a team of Wills and probate lawyers, we certainly haven’t let lockdown stop us helping people get LPAs and other important legal documents in place. We’re using a variety of means to ensure we provide the same, expert advice we always have. Phone, email, video calls – they’re in full swing at Thomas Mansfield! It means our service is as complete and efficient as it was pre-Covid. But we don’t mind admitting that we miss meeting clients in person and can’t wait to be able to welcome you to our offices again.

 

To find out more about LPAs, Wills or any other aspect of future planning, contact:

Emma Howlett - Thomas Mansfield Wills & Probate Legal Executive

Emma Howlett

01892 337540
emma.howlett@thomasmansfield.com

I’ve been named as attorney in a Lasting Power of Attorney. What do I have to do?

Firstly, don’t panic! If you have been chosen, it’s because the person appointing you believes you have the skills and aptitude to do a good job.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document. It’s put in place by someone (a ‘donor’) who wants to provide for their future by nominating a person, or a number of people, to make decisions on their behalf in the event that they become unable to do so. The LPA is made while the donor has mental capacity (they are recognised in law as being capable of making their own decisions) and the donor can specify that it applies immediately or that it will come into play if mental capacity becomes lost, perhaps through old age, illness or an accident.

We encourage our clients to think ahead and to make LPAs, as well as Wills. (In fact, ‘Lockdown LPAs’ are proving extremely useful at the moment, enabling elderly and vulnerable people who are isolating to call on the support of attorneys.) We also help people who have been appointed attorneys under LPAs understand their legal responsibilities and carry out their duties.

What do I have to do?

As an attorney, the first thing to establish is whether you have been chosen to look after the donor’s property and financial affairs (their home, outgoings, investments etc), or their health and welfare (including where the donor should live and what treatment they should receive). Although attorneys don’t need to have any particular qualifications, a donor will select the person they feel has a sufficient level of knowledge about them, their wishes, and the type of decision that will need to be made.

You should also establish whether you will be the only attorney, or if someone else has been appointed to make decisions with you. An LPA can specify that two or more donors should act jointly, which means every decision must be made together. Or the LPA can specify that decisions may be made jointly and severally – attorneys can act together or individually. Donors who insist on decisions being jointly made may take comfort from knowing that, as long as attorneys are on an equal footing and one is not significantly more domineering than another, decisions will be well considered. However, it may not always be plain sailing!

The central aspect of all of this is that, whatever decisions attorneys come to and however they are reached, those decisions must be in the best interests of the donor. As an attorney, you need to know exactly what you will be empowered to decide, and the LPA itself will be your point of reference for this. As well as specifying whether you are a property and financial affairs attorney, or a health and welfare attorney, the LPA may set out specific instructions or wishes. It’s so important to understand your role from the outset and to regularly check that you are acting within the scope of it and fulfilling it as best you can.

Don’t I have to be an expert?

That last point is important. Many attorneys are family and close friends; they may not have accountancy qualifications or a medical degree, and nor do they need to. Attorneys simply need to carry out their role diligently, thoroughly and to the best of their ability. You are not expected to have a deep understanding of legal, financial or health matters (help is on hand for those). But you are expected to take reasonable care. To be honest, responsible, methodical and conscientious. And to act in the donor’s best interests at all times.

Read more about Powers of Attorney, including:

For advice about any aspect of your role as an attorney, or to speak to us about making a Lasting Power of Attorney, contact us on 01892 577092 or email info@thomasmansfield.com.

Business Owners Must Embrace Lasting Power of Attorney

During these turbulent times many business owners are, undoubtedly, considering what would happen to their business if they were to be in self-isolation, stuck abroad due to travel restrictions, have an accident or lose mental capacity.

Under these circumstances, and without some form of lasting power of attorney (LPA) in place, they may not be able to fulfil their personal life as they might wish, carry out their job, or run their business effectively.

Personal LPAs

For those who are married, have children or own property, it is generally advisable to have personal LPAs. There are two types of LPAs which one can have for personal affairs: property and financial affairs LPA, and health and welfare LPA.

Property and financial affairs LPAs are for things like managing bank accounts, paying bills and selling property. They can be used by attorneys as soon as they are registered. Family members can help with these if necessary, and, for example, can be added to the owner’s bank accounts to assist with financial matters.

As to health and welfare LPAs, attorneys will use them to make decisions about the person’s daily routine, their medical care or life sustaining treatment to mention just a few. These LPAs can only be used if the donor has lost mental capacity.

Many people have personal LPAs but fewer have business LPAs. However, business owners whose business affairs are separate from their family should also consider a business LPA.

Business LPAs

As the name suggests, business LPAs allow the owners of businesses to choose attorneys who can make decisions for them in the running of business. Business attorneys may make decisions at the broadest strategic level, or at a very detailed level. Either may be vital to keep the business running well, but both will require a business LPA.

In addition, businesses often have practical considerations, like signing off on strategic or trivial decisions, authorising payments and using business bank cards, that are not present in an individual’s personal life.

When both types of LPAs are needed

If you have LPAs for your personal life, you may consider you don’t need a business LPA since, in theory, these can extend to your business. But bear in mind most people choose family members as their attorneys for their personal affairs, and they might not be best placed to make business decisions.

Often co-owners or employees will make a better choice of attorney for business matters as they will primarily have a better understanding of the business and will be less prone to the conflict of interest.

Types of businesses that need business LPAs

Sole traders are vulnerable by the very fact that they are their businesses; it is therefore advisable to have business LPAs in place.

Partnership agreements sometimes have clauses to cover these points, but if not, or there is no partnership agreement, business LPAs come into play. Fellow partners are usually attorneys for each other.

Limited companies may have a shareholder’s agreement in place to cover the position, but if not, other directors, shareholders or employees with a business LPA could make a good choice of attorney.

Charities and limited liability partnerships have the same basic principles.

One can also appoint a professional attorney like their solicitor who is best placed to make totally independent decisions on behalf of their client.

What happens if there is no business LPA in place

If there isn’t any form of LPA, an application to the Court of Protection to make decisions or determine practical solutions either in relation to personal or business decisions may well be required.

This process is expensive, takes at least six months to instigate (during which time you, your family or business may suffer hugely) and the Court may appoint someone who you would not have chosen.

Not having any form of LPAs is therefore not an option for most individuals and less so for those who own a business.

For advice on making a personal or business LPA, or to discuss any aspect of Wills and Trusts, contact us on 01892 577092 or email info@thomasmansfield.com.

Guidance for Coronavirus: Legal preparation

Will a normal Power of Attorney be sufficient if I have to go into hospital?

The coronavirus pandemic has made many people consider what legal steps they might need to take in the event they end up in self-isolation unable to sign documents, or are required to go into hospital, either on a ventilator in intensive care or ending up in a coma.

If you are hospitalised as a result of the coronavirus (or for that matter, any reason), there are a few simple steps that can be taken to safeguard your own interests and those of your family.

Powers of Attorney enable your attorneys to make decisions on your behalf if you cannot.

They are usually used in cases where an individual loses mental capacity but because a person can lose capacity and regain capacity, they are particularly useful while in hospital where there are many situations that could cause a person to be temporarily without capacity such as an induced coma.

There are a few different types of Power of Attorney and you need to consider, which would be the most suitable in accordance with your own circumstances.

Lasting Powers of Attorney (LPAs) give you, as the donor, the choice of attorney to make decisions on your behalf if you can’t.

An attorney could be a close friend or family member who you would trust to make decisions on your behalf or someone independent such as a solicitor. Typically, you would appoint two attorneys, but you could have more. The authority could be for them to make decisions together or some decisions individually.

Health and Welfare LPAs

If you were in hospital, a Health and Welfare LPA allows attorneys to make decisions about your medical care including life-sustaining medical treatment in addition to the more regular decisions such as your daily routine such as washing, dressing and eating. In the absence of an LPA, such decisions could be made by the NHS, which may disadvantage your family and friends, for example if the NHS wanted to move you to a different hospital several miles from where you live. Attorneys are also able to make decisions about whether you should be sent to a particular nursing home.

If you are worried about losing mental capacity through illness or traumatic illness, then a Health and Welfare LPA is essential for your loved ones to be able to make decisions on your behalf. These decisions include medical decisions and can also include life-ending decisions such as stopping medication or turning off life support machines. Sometimes they therefore are decisions doctors cannot make or would not know your preference as well as someone who knows you well.

Property and Affairs LPAs

A Property and Affairs LPA allows your attorney to make decisions about your personal finances and affairs even if you have not lost capacity but are simply unable to look after your own finances or affairs, for example while in hospital. They allow attorneys to transfer cash between your bank accounts to enable the payment of regular outgoings, which they can also effect on your behalf.

Business LPAs

If you own or run a business you may need a Business LPA with the attorney being a co-owner, which is really like a Property and Affairs LPA drafted with your business needs in mind, with different attorneys who are more able to look after your business affairs than your friends and family.

Court of Protection

If you cannot make decisions for any of the reasons set out above, and have not made an LPA, an application to the Court of Protection to make decisions on your behalf or determine practical solutions may well be required. This process is expensive, takes at least six months to instigate and the Court may appoint someone who you would not have chosen.

It is therefore advisable to put in place LPAs while you are able, and before any emergencies when your family or friends will need them to help you.

Wills

Of course, no matter what stage of your adult life you are at, it always makes sense to have a Will. A Will enables you to leave your estate to the people you choose such as family and friends. In the absence of a Will, your estate is divided in accordance with the law of intestate, which means that the people you love most could miss out completely. In addition, a properly drafted Will can save the beneficiaries paying inheritance tax on your estate and save them thousands of pounds which might otherwise just be paid to the state in tax.

Mental Incapacity and Deputyship

Have you thought about the possibility that you might one day become unable to make day-to-day personal decisions?

If not, you’re not alone. Few of us address our minds to this, probably because we’re so busy living in the here and now. Of course, there’s also the fact that it’s not something we really want to have to consider. But there is a lot to be said for understanding how provisions are made to help people who find themselves in that position.

One possibility is that an Attorney will be brought in to make decisions on behalf of the person who, perhaps through illness or injury has lost the ability to do so. An Attorney (usually a family member or close friend) is appointed via a Power of Attorney, which is a legal document put in place while its maker has mental capacity. We regularly talk to clients about making a Lasting Power of Attorney, which takes effect if mental capacity is lost. It allows you in advance to select the people you think would be best placed to take care of your financial affairs, your property, and your health and wellbeing. While you may never have to call on your Lasting Power of Attorney, it’s comforting to know that it’s there should you need it.

But what if you lose mental capacity without having put that type of arrangement in place? All is not lost. A specialist court called the Court of Protection will make sure that someone is given the job of making decisions on your behalf. That person is called a Deputy. He or she must be at least 18 years old and could, like an Attorney, be a family member or a friend. Solicitors like us, and other professionals, are sometimes called on to be Deputies – particularly where the needs of the person who has lost mental capacity call for specialist knowledge.

Deputies are usually appointed to take care of financial and property matters, like paying bills on behalf of the person and managing their investments. They can also be involved in making decisions about a person’s care, health and welfare – where they should live, and what type of medical treatment they should have, for example. It is quite common for more than one Deputy to be appointed to each role, so it’s important that they are able to work together with one common purpose.

A Deputy must act in the best interests of the person who has lost mental capacity. Their role will be strictly defined by the Court of Protection, and the things they do are overseen by the Office of the Public Guardian. So, there is a fair bit of focus on making sure that Deputies are competent and that they make informed and well-judged decisions.

We often advise the families of people who have lost mental capacity, and we support them through the process of having their loved one’s affairs and daily life decisions taken care of. We also support those who have been appointed Deputies. It’s not an easy role to take on, particularly where the emotions involved in dealing with the effects of mental incapacity are in the mix. It can be difficult to see loved ones in a vulnerable position, and it’s sometimes hard to know what to do for the best when it comes to making important decisions about their financial security and their care.

This is something we should all be thinking about. As individuals, we may want to start organising our affairs and putting in place plans for how we would like to be taken care of in the event that we go on to lose mental capacity. A Lasting Power of Attorney is a really useful option to consider, and it’s relatively quick and easy to prepare with help of a specialist Private Client solicitor. But on a more basic level, perhaps communicating with our loved ones about these kinds of issues – our thoughts and feelings about care and provision in the event that illness or injury takes away our ability to make our own decisions – is a good thing to do. The more willing we are to talk about these difficult subjects, the more prepared we’ll all be to tackle them with confidence, and in the right way, if it comes to it.

For advice about any legal issues around the loss of mental capacity, or deputyship in particular, contact us on 01892 577092 or email info@thomasmansfield.com.

 

Digital Assets As Part of Your Estate

Property, possessions, money in the bank, shares and investments.

Those are the standard types of assets that most of us will think about protecting during our lifetime and passing on to loved ones after our death. You may have set out in your Will that your share of the family home should pass to your partner; your jewellery to your son or daughter; your investments to family members. But what about your digital assets?

Most people have an online presence of some sort, whether it’s a Twitter account, Facebook page, or music playlist. We have online bank accounts, shopping accounts, perhaps a website and a blog. Maybe even cryptocurrency like Bitcoins. We store our photos online. However, not all of these things are considered to be ‘assets’ in the sense that they hold value or that arrangements should be made for others to benefit from them once we’re no longer around.

Strict rules about passwords mean that people are frequently unable to access the online accounts held by a loved one who has passed away. It means that they can’t easily take ownership of family photos held on that person’s Apple account, for example. It can be an extremely distressing experience for those who simply want to hold onto memories. There is also the potential for financially valuable digital assets to fall into a black hole.

One way of avoiding those situations is for a person making a Will to factor in arrangements for the handling of their digital assets post-death. This is something we routinely encourage clients to do as a way of tying up all loose ends. We’ll talk to them about the tangible assets that are easily recognised as valuable, and we’ll also help them compile details of the ones they’re less likely to have considered. It’s great to see that while there was once scepticism about the value that digital assets hold, there is increasing recognition that these things really are worthy of a place in a Will.

So, what should you be doing now? Putting together a neat list of your digital assets is a really good starting point. Think about the things you do online – buying, storing, creating, posting. Remember that the value in some of these things may be sentimental but it can also be financial – you may hold intellectual property in things you’ve designed, for example.

It will be straightforward enough for your solicitor to add digital assets to your existing Will, or to incorporate them into a new Will if you haven’t yet made one. And it’s something worth doing not only to enable people you care about to benefit from the things you own, but also to make it easier for them to handle the practical things that will need to be sorted out after you have died. That might sound a little morbid. But these things have to be dealt with, and the more straightforward you can make that for loved ones, the better.

As part of the process of getting to grips with their digital assets (and clients are frequently surprised by just how many they own), some people choose to store things in a different format so that they’re more easily transferrable. Family photos are an example. If, like me, you have thousands stored on your phone, now may be the time to sift through and print the favourites. That’s not legal advice, by the way! It’s a practical step that ties in neatly with the process of collating digital assets, and it’s one that could serve your beneficiaries well.

To talk to us about dealing with your digital assets as part of your estate, or for advice about any aspect of estate planning, contact us on 01892 577092 or email info@thomasmansfield.com.

 

A Change In The Law To Help Families of Missing People

This summer saw the introduction of ‘Claudia’s Law’.

Named after Claudia Lawrence who went missing in York in 2009, the much campaigned for new legislation has been hailed as hugely significant for those coping with the disappearance of a loved one.

The emotional distress that families suffer has long been aggravated by difficulties in dealing with some of the practicalities. A missing person’s affairs are treated by banks and utility companies, for example, as strictly personal to him or her. Access has been denied to anyone not named on a policy or account, regardless of the situation. So husbands, wives, parents, children have been unable to take over the handling of the missing person’s mortgage, their gas bills, their mobile phone account.

We have advised many people in that position, and we’ve seen just how difficult it has been for normal affairs to be taken care of. In one sense, that is as it should be; organisations have serious data protection responsibilities. But it has created a situation that has proved immensely frustrating – often traumatic – for those trying to cope when a family member has disappeared.

Claudia’s Law (or, to give it its full title, The Guardianship (Missing Persons) Act 2017) addresses that problem head-on. It introduces the idea of a ‘guardian’ – someone who is authorised to exercise certain powers in the best interests of a missing person. These include paying debts, cancelling direct debits, and selling their property. It’s essentially managing that person’s interests and financial affairs on their behalf.

Pre-Claudia’s Law, that could only happen if the missing person had been declared deceased. Without proof that they had died (a situation in which many families of missing people find themselves) a declaration of presumed death could only be applied for once the person had been missing for seven years. That was a significant period of limbo, which only served to heighten the stresses and strains on family members.

Under the new law, however, a guardianship order can be applied for once a person has been missing for 90 days. Becoming a guardian enables someone to take over the management of the missing person’s affairs without having to have established that they have died.

‘Missing’ for these purposes means that the person is not at their home, and he or she is not doing the usual day-to-day things (going to work, for example). Also, either it hasn’t been possible to make contact with them because it is not known where they are, or the person can’t (for reasons that are beyond their control, but not because of mental incapacity, illness or inury) make or communicate decisions about their own financial affairs. Interestingly, that latter scenario covers people who are in prison, even though they might not ordinarily be considered to be ‘missing’.

More than one person aged 18 or over can be an appointed guardian, and for a term of up to four years. And there are controls in place to make sure that guardians carry out their duties properly and that they exercise reasonable care and skill; the Office of the Public Guardian oversees guardians’ activities, as well as imposing specific duties and restrictions on what they do.

Support is at hand, too, from lawyers like us who are here to advise guardians, helping them take the right steps and make the right decisions.

Since Claudia’s Law came into force on 31 July this year, we have already seen a positive impact on families that are in the midst of incredibly difficult personal situations. Knowing that there is a clear process available to them that will at least ease the administrative burdens can be hugely comforting. It takes away some of the pressures. And it enables those close to the missing person to put in place arrangements that keep affairs in order – something that could prove vital, particularly if the best should happen and their missing loved one returns.

To find out more about application of Claudia’s Law, and the support we can offer families of missing persons, contact us on 01892 577092 or email info@thomasmansfield.com.

Powers of Attorney – the mental health insurance policy?

As unpredictable as the future is, it’s safe to say that mental ill health will touch each of our lives in some way.

A particularly worrying trend is the rise in cases of dementia. It is reckoned that, globally, the number of people living with dementia will rise from 50 million in 2018 to 152 million in 2050. People over the age of 65 now have a one in 14 chance of developing it. For those over 80, it’s one in six. Source: Alzheimer’s Research UK.

The idea of a person becoming mentally unwell to the extent that they can no longer make decisions in their own best interests causes huge emotional issues for those close to them. It also brings significant practical and legal considerations to the fore. The most prominent of these is usually: who takes care of this person’s affairs now that he or she can’t do it?

The answer depends on whether or not the person put in place a Power of Attorney – a legal document specifying who should take important decisions on their behalf in the event that they lose mental capacity. Without this, there would need to be an application to a specialist court – the Court of Protection – which would take over handling the affairs. The problem with that in some family members’ eyes is that it can distance them from the important decisions.

Yet too few people consider Powers of Attorney. When life is good and there is no reason to believe that mental illness is on the cards, it is easy to sideline things that don’t seem relevant or necessary at the time. But that is the point. A Power of Attorney can only be made while a person is considered mentally capable. Once capacity is lost, it’s too late.

What is a Power of Attorney?

There are two types, and they each put in place mechanisms for having important decisions made in the event of incapacity. Remember that the legal right to deal with another person’s affairs does not arise automatically. Access to bank accounts, for example, will not be granted without legal authority even if the account-holder has become mentally incapacitated. Where a Power of Attorney has been made, the ‘attorney’ takes over the decision-making and the more general handling of affairs.

Ordinary Power of Attorney

This is a temporary measure aimed at covering a period during which a person feels they will not be able to make decisions about their finances. Perhaps they are incapacitated (in hospital, for example) or living or holidaying abroad. An Ordinary Power of Attorney allows them to appoint someone to make those decisions for them.

Lasting Power of Attorney

A Lasting Power of Attorney is made with the possibility of future mental incapacity in mind. In many situations, it never sees the light of day because the person who made it did not go on suffer from mental illness. However, its value is twofold: (a) it provides the comfort of knowing that it’s there should it be needed, and (b) it will be an invaluable way of enabling decisions about some of life’s most important issues to be dealt with.

An attorney can be given responsibility for decisions about the person’s property and finances (whether to sell their house, for example), or their health and welfare (should they receive a particular medical treatment, perhaps?). It is common for more than one attorney to be appointed, so it’s important that they are likely to be able to work together with the shared aim of making the best possible decisions in the circumstances.

It is also important to choose attorneys whose values and judgement you trust. They do not necessarily have to be experts in the task they could be given (you don’t need to have an accountant for the finances, and a doctor for the medical side of things) but it really helps to have people who will work diligently and sensibly in their role. In fact, most people choose a close friend or family member because of the close connection and level of trust that that generates.

Despite their many benefits, Powers of Attorney remain underused. We want this to change. As Wills and Probate solicitors, we see every day the difficulties that can be caused when mental illness or mental incapacity caused by an accident (this isn’t just about dementia) takes hold of people and families. So our advice is always to plan ahead. Put in place the things that could help you and those you love. The relatively straightforward step of making a Power of Attorney could be the best thing you do today.

To discuss making a Power of Attorney, or for advice about any aspect of Wills and Probate, contact us on 01892 577092 or email info@thomasmansfield.com.