Life is unpredictable, and while we naturally hope for the best, preparing for the unexpected is crucial. We often focus on things like retirement savings, property, and our estate, but the prospect of losing mental or physical capacity — even temporarily — is something many people overlook.

Preparing for potential incapacity isn’t just about financial protection, but also about ensuring that our wishes are respected when we can’t speak for ourselves. Illness, injury, or the natural effects of ageing can sometimes leave us vulnerable, so having a plan in place to manage both health and financial decisions during such times is incredibly important.

It’s almost like putting a safety net in place — not because we expect to fall, but because if we do, we want to be certain it’s there to catch us, and that it will catch us in the way we would have chosen.

One of the most empowering things you can do is take control of the situation by planning ahead. A Lasting Power of Attorney (LPA) is an essential legal document that allows you to appoint one or more individuals, known as your ‘Attorney(s)’ to make decisions on your behalf if you either authorise them to act whilst you have capacity (this option is only available for your financial LPA) or if you become unable to do so yourself, whether due to illness, injury, or incapacity. There are two main types of LPAs:

1. Property and Financial Affairs LPA – which covers decisions relating to your finances, property and other assets.

2. Health and Welfare LPA – which covers decisions about your personal health, where you live, medical care, day to day activities and well-being.

Here are some of the key reasons why preparing a Lasting Power of Attorney is important:

1. Control over who makes decisions for you

Without an LPA in place, if you lose mental capacity, decisions about your care or finances could be made by someone that may not have wanted involved, such as the Local Authority, family member or even a friend.

2. Peace of mind for you and your loved ones

Having an LPA in place gives both you and your family peace of mind. If something happens and you’re no longer able to make decisions, your appointed Attorney(s) will already be empowered to step in. This reduces stress and uncertainty for your family during a challenging time.

3. Prevents delays and possible complications

Without an LPA, if you lose mental capacity, your family might have to apply to the Court of Protection for a deputyship order. This process can be lengthy, costly, and stressful. An LPA avoids this situation, as it gives someone immediate authority once the document has been registered to step in and act on your behalf, when the circumstances arise.

4. Flexibility

You can specify exactly what decisions you want your attorney to be able to make. For example, with the Property and Financial Affairs LPA, you can choose whether your attorney can make decisions about your property immediately or only after you’ve lost mental capacity. Although this option isn’t available for the Health and Welfare LPA, you may wish to include preferences of instructions, which need to be carefully worded, on things like medical treatment, care options and even whether you want your attorney to make decisions about life-sustaining treatments.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

Many business owners often focus on growth and achieving the day-to-day operational demands of their business, failing to recognise the importance of what happens when they are no longer there to lead it. Business succession planning involves identifying successors and preparing for the transfer of leadership and ownership of your business when you retire or cannot continue management.

According to the National Association of Corporate Directors, less than one in four private business owners have a formal succession plan in place. Following recent changes to inheritance tax for businesses in the Autumn Budget 2024, it is a good time to start planning for the long-term survival of your business. A strategic succession plan not only helps to ensure continuity of your company, but will also drive growth, reduce tax and facilitate your retirement.

Wills

Putting a Will in place is the simplest, yet arguably the most important, method of succession planning allowing you legally define the succession of your business. Through a carefully drafted Will, you can specify how you want your assets, including your business, to be distributed on your death. You can choose entrusted executors in your Will who will be responsible for managing and distributing your business assets according to your wishes. You can also include a trust in your Will that will protect your business if you have beneficiaries who are minor and cannot manage finances themselves.

Lasting Powers of Attorney (LPA)

An LPA is another important consideration for business owners which allows you to appoint a trusted individual to manage your financial and business affairs should you lack capacity or are physically unable to do so.

The consequences for you and your business when you do not have a properly executed LPA in place are wide-ranging, particularly for sole business owners. Without an LPA, a costly court application will be required to appoint a Deputy to act on your behalf, who may not understand or carry out your wishes. While partnership agreements may address lack of capacity, an LPA offers a more comprehensive solution by managing all your personal financial matters and providing greater legal protection.

Tax Planning

Recent changes in the Autumn Budget 2024 have capped Business Relief against inheritance tax up to the value of £1million, with any value exceeding such cap being taxed at the rate of 20%. Lifetime gifts and charitable contributions that are appropriately timed and structured can lock in the favourable Business Relief regime and enable transfer of your business to be managed in the most tax efficient way.

Overall, a strategic, long-term approach to business succession planning should be an integral part of your business strategy and operation. Planning ahead will safeguard long-term success of your business and protect your business assets. By seeking further legal advice from our team, we can help you with all aspects of succession planning for your business when it comes to making a Will and Lasting Power of Attorney.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

If you and your sibling have both been appointed as attorneys in a Lasting Power of Attorney (LPA), you may wonder how this will work in practice. In this blog I will explain the roles and responsibilities you both have as attorneys and what you can do should an issue arise between you. 

Your role and responsibility as an attorney

Being appointed to act as an attorney for someone is a serious responsibility. In choosing you to act, the donor likely felt you are a trusted individual who can take on the responsibility necessary for their future health and financial decisions. They likely believe you will make decisions in their best interests for when they become unable to.

Acting jointly as an attorney  

When acting jointly with your sibling as attorneys, your roles and responsibilities are similar to those of a sole attorney, but with some additional considerations due to the shared responsibility. Here are some key aspects of your role:-

  1. You must work closely with your sibling to make decisions in the best interests of the donor.
  2.  Strive to reach a consensus on decisions whenever possible. This may involve discussions, negotiations, and compromise to find solutions that align with the donor’s wishes and needs.
  3. Hold each other accountable for fulfilling your duties and responsibilities as attorneys, including keeping accurate records, managing the donor’s affairs responsibly and avoiding any conflict of interest.
  4.  Inform each other of any significant decisions or actions regarding the LPA. Regular communication ensures transparency and helps prevent misunderstandings.
  5. Consult with each other as well as the donor if possible, when faced with important decisions or situations that may impact the donors welfare or interests.
  6.  Ensure all actions taken by you both comply with the law, regulations, and the terms of the LPA.

By working together effectively and fulfilling your duties conscientiously, you can ensure that the donor’s best interests are prioritised and that their affairs are managed responsibly and ethically.

What happens if we cannot agree?

Conflict resolution

In the event that you and your sibling have disagreements, the following options are available to you when trying to resolve disputes:

  1. Reaching an agreement: the first step would be to openly communicate with one another and express your concerns and try to reach a compromise.
  2.  Obtaining legal advice: seeking legal advice from an experienced solicitor could help provide clarity on your rights and options. They can review the LPA document, assess the situation and offer guidance as to the best course of action.

Applying to the Court of Protection: if the disagreement is still ongoing and cannot be resolved through negotiation or obtaining legal advice, then applying to the court for intervention might be the alternative. The court can make decisions regarding the LPAs, including appointing replacement attorneys and providing guidance on specific issues.

Summary

Every dispute is different and depending on the circumstances, one dispute might take a different approach to another.

Obtaining legal advice may be a good option for you as it will provide clarity on your options and will not escalate matters too much.

Our Wills, Trusts and Probate team or our Litigation and Dispute Resolution team can advise you on next steps. Please give us a call on 01908 660966 or 01604 828282 or email info@franklins-sols.co.uk.

 

 

Interestingly, a lot of people know about the importance of putting Wills in place but very few know about the importance of putting Lasting Powers of Attorney in place.

Lasting Powers of Attorney are crucial if you were to become mentally and/or physically incapable. Life can be unexpected, and Lasting Powers of Attorney should not therefore just be considered as something to put in place in later life.

According to the Alzheimer’s Society, it is estimated that by 2025, more than 1 million people in the UK will have dementia and currently, one in five people over 85 are already suffering from it, with rates significantly higher among women than men.

What are Lasting Powers of Attorney?

A Lasting Power of Attorney (LPA) gives another individual the legal authority to take care of your financial affairs or health and welfare matters in the event you are no longer able to do this for yourself.

If you do not have an LPA in place and later lose capacity, your relatives may face long delays and crucially, incur a lot of money in applying to the court of protection to obtain a deputyship order to take control of your assets and finances. Critically, you have no control over who makes this application which could mean someone is appointed to manage your affairs who you would not have chosen yourself.

What types of Lasting Powers of Attorneys are there?

There are two types of LPAs: –

  1. Property and Finance; and
  2. Health and Welfare.

Property and Finance Lasting Power of Attorney

Health and Welfare Lasting Power of Attorney

It is important to highlight that an attorney under a property and finance LPA can make decisions for the donor whilst they have capacity if the donor authorises them to do so, whereas a health and welfare LPA can only be used once  the donor has lost capacity.

Choosing an attorney

It is important to ensure that you are appointing attorneys whom you can trust implicitly, they must be over the age of 18 and not bankrupt (in terms of the finance LPA). The attorneys you choose should be willing to take on the role as it is a serious responsibility. They must ensure that they have your best interests in mind when making decisions and they should also adhere to the principles set out under the Mental Capacity Act.  As a donor, you can restrict or specify the types of decisions the attorney can make, and provide guidance.

Whilst you can draft Lasting Powers of Attorney yourself, it is recommended that you seek legal advice as a Private Client solicitor can talk you through your options, explain the authority conferred by the LPA in detail and discuss whether you wish to add any guidance or restrictions. Seeking specialist legal advice will also ensure that the paperwork is completed correctly, that your LPA is properly registered and therefore valid, and most importantly, that it reflects your wishes.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

 

Lasting Powers of Attorney (LPA) allow you to appoint attorneys, people you trust implicitly, to deal with your financial affairs and health and welfare affairs during your lifetime.

The Office of the Public Guardian expect to register 1 million LPA’s in 2023.

Is it easier to prepare them myself?

Making LPA’s can be a cumbersome process due to the amount of paperwork involved. If a mistake is made within the LPA and this has then be submitted to the Office of the Public Guardian, there is a risk that the LPA will not be registered. This can have a detrimental impact on the donor if anything happened to the donor prior to the LPA being registered for example, if they had since lost capacity. In this situation, the donor would be treated as not having LPA’s in place and there loved ones would need to make an application to the Court of Protection to apply to become deputies instead. This is a lengthy and time consuming process.  

How are they safeguarded?

When making LPA’s it is extremely important that you trust your attorneys implicitly. At the moment the Office of the Public Guardian do not have any powers to investigate those making an application for the LPA’s and to stop registration if they have any concerns. They are reliant on third parties to raise concerns. The Office of the Public Guardian have confirmed that it is quite common for certificate providers to sign the LPA’s and then raise concerns with the Office of the Public Guardian when the LPA’s have then been sent of for registration. Often Certificate Providers are friends or neighbours who would not feel comfortable raising their concerns with the donor themselves.

In the case of Public Guardian v RI [2022] EWCOP 22 (07 June 2022) the Court of Protection determined that the donor did not have sufficient capacity when he made his Lasting Powers of Attorney 12 years ago and, therefore, the Office of the Public Guardian were ordered to cancel them.

This case highlights the importance of ensuring that where a donor may lack the capacity to prepare a Lasting Power of Attorney extra precautions are taken. In order to execute a Power of Attorney, a ‘Certificate Provider’ will need to sign the LPA to confirm that they are happy that the donor has the necessary capacity to make the LPA. The Certificate Provider can be someone who has known you for at least 2 years however, it is advised, especially where capacity is a concern, that this Certificate Provider is a solicitor or a medical professional. In this case, the Certificate Provider could not be traced and, therefore, this meant that the capacity of the donor at the time could not be determined.

It is important that you are fully advised on the implications of putting in place LPA’s and the necessary steps are taken to ensure you have capacity and mitigate any challenges a relative may wish to make against the validity of your Lasting Power of Attorney. Whilst LPA’s can be prepared by the donor, if it was ever questioned in the future it would be a challenge to demonstrate the donor did in fact have the required capacity at the time the LPA was prepared and signed.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

 

Photo by Alex Green from Pexels

Have you ever considered what would happen if you were in an accident or if you were diagnosed with a condition which meant that you could no longer make decisions for yourself?

If only we could see what the future holds? Maybe we would then be in a better position to plan for what is to come. No one has the answer but this doesn’t mean that you can’t plan ahead for some eventualities.

It is a common misconception that your spouse or civil partner would automatically be in a position to deal with matters for you. Some also think that their ‘next of kin’, perhaps a child, parent or sibling, would be able to help instead. Unfortunately, they too do not have the legal right to deal with matters on your behalf.

This leaves many people in a vulnerable position. Family members, may find themselves in the position that they are unable to access information regarding your assets, even in order to keep paying your bills or dealing with your day to day care.

So, what can you do to prepare for your future?

Lasting Powers of Attorney – what are they?

A Lasting Power of Attorney allows one or more people you Trust implicitly – called “Attorneys” – to make decisions on your behalf, known as the “donor”. There are two types of Lasting Powers of Attorney:

Both Lasting Powers of Attorney are a legally binding document recognised by financial institutions, such as banks, plus government bodies which allow you to appoint individuals closest to you to assist you during your lifetime. Guidance and conditions can also be included to ensure that you are protected whilst also providing your appointed Attorneys with some guidance, which will help them to make decisions in the future.

Lasting Powers of Attorney must be registered with the Office of the Public Guardian before it can be used. In the case of Property and Financial Affairs Lasting Power of Attorney, these can be used prior to the donor losing capacity, if the donor wishes at the time of the Lasting Power of Attorney being created.

A Lasting Power of Attorney can therefore best be described as an insurance policy and while it’s hoped it will never need to be used, it’s there just in case.

What if it’s too late and your loved one has already lost capacity without putting a Lasting Power of Attorney in place? – Deputyship

If you don’t have a Lasting Power of Attorney and you lose the ability to manage your own affairs, the alternative is Deputyship. This is a slow and expensive process (usually around 6 – 12 months), involving an application to the Court of Protection.

This therefore makes it extremely difficult for the person looking after you, as they won’t have legal authority to help you until after the authority is granted.

Health and welfare deputyships are uncommonly granted by the Court of Protection and are usually seen as a last resort. Instead, an order may be made to assist with a specific issue rather than delegating full decision-making power. This is because the Court prefers to retain powers in this respect given the sensitive and often complex nature of the decisions to be made.

If you’d like more information about Lasting Powers of Attorney contact our expert Private Client Team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection. 

Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there has been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one. 

What is a LPA?

There are two types of Lasting Power of Attorney;

They are legally binding documents, registered by the Office of the Public Guardian, used to protect your interests by nominating people you Trust to act on your behalf, should you become unable to make important decisions about your own welfare or financial decisions.

What if I lose capacity and I don’t have LPAs in place?

Your loved ones would need to begin a lengthy and costly application to the Court of Protection to apply for Deputyship over your finances. The Court of Protection must be satisfied that the appointed Deputy is in the individual’s best interests. When it comes to health and welfare matters it’s often much more difficult for a Deputy to be appointed. That said, there are certain scenarios where the Court of Protection require cases to be brought before them for a decision to be made.

Deputyship also imposes additional duties on the Deputy in terms of filing accounts and supervision from the Court of Protection.

How to avoid an application for Deputyship

To avoid this difficult kind of legal situation it’s important to utilise the expertise of a specialist lawyer to assist in putting in place Lasting Powers of Attorney and support those making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.  

At Franklins, our expert Private Client team provide clear, practical advice in future planning. For further information Lasting Powers of Attorney, contact the team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

A recent article prepared by my colleague Ellen Stiles highlighted the importance of preparing a Lasting Power of Attorney, especially in light of the current pandemic where they have been invaluable, not only for the vulnerable and elderly, but to a much wider group of people from all sections of society, who have required assistance through lockdown.

Following on from this article, the Office of the Public Guardian (the OPG) have recently unveiled an online platform which now allows an Attorney to create an account whereby they can upload a copy of the registered Lasting Power of Attorney. The Attorney can then get an access code that they can provide to the relevant organisations to prove their authority to act. Prior to this platform, paper copies of the Lasting Power of Attorney needed to be provided, which could then take several weeks to process causing delays for the Attorney(s) who needs the authority on the relevant account to act.

It is important to note that the online forum is only being rolled out for Lasting Powers of Attorney registered from 17th July 2020, although the OPG are looking at extending it to Lasting Powers of Attorney registered before this date.

We do however advise that, although the online service may make the process more convenient for Attorneys and has received good feedback according to the OPG, caution must to be still be taken as, with any online platform, it could be open to abuse and safeguarding the Donor (the person making the Lasting Power of Attorney) must remain paramount.

For more information on Lasting Powers of Attorney, contact our friendly Private Client team today on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

LPAs and Will WritingSeptember is Alzheimer’s month and provides an opportunity for organisations and individuals to raise awareness of the disease and to do all that we can to support those living with it.

Here at Franklins Solicitors LLP, 71 members of staff have become Dementia Friends by completing some voluntary training to understand how to recognise that a client may be struggling and how to assist those individuals to come to a solution.

Dementia refers to a variety of illnesses and conditions which result in an impairment of brain function and a decline in intellectual functioning. In light of the below statistics published by the Alzheimer’s Society, we constantly advise clients who attend our offices to ensure that their affairs are in order well in advance to assist them, and their loved ones.

Statistics:

Advice:

Although we advise clients to prepare for the future, should you be diagnosed with dementia, this does not automatically mean that you are unable to take any further action. Provided that you still have the necessary capacity to make a Will or Lasting Powers of Attorney, a diagnosis does not prevent you planning for your future, it may just slightly complicate matters and this is where specialist advice is important.

Here at Franklins Solicitors LLP we are dedicated to assist where we can. If you would like to obtain advice or guidance regarding the preparation of a Will, Lasting Powers of Attorney or would like assistance with a Deputyship Application, please contact our Private Client team on privateclient@franklins-sols.co.uk or call our Northampton office on 01604 828282 / Milton Keynes: 01908 660966.