Every Friday, our Wills/Probate/Lasting Power of Attorney Team receive updates on good practice and changes in the law. The information we receive often leads to quite a lot of discussion and training. You would think that this would be a very dry area of law with not a lot happening, it’s not exactly Perry Mason stuff is it? However, I never cease to be amazed at the things that crop up, the myriad of reasons why a will is challenged, the skulduggery that is exposed when I am conducting a probate matter or the need to protect our vulnerable clients wherever possible. So I thought I’d offer you a few snippets of information.
In the case of a person who lacks mental capacity, it is my duty to protect that person. I was contacted some time ago by “Amy,” she had decided to put all of her mother’s savings into a joint bank account bearing Amy’s name and her mother’s name. Now she wanted to access an investment account that her mother had. I established that mum was in a care home, and the state was funding her entire care. Amy was somewhat annoyed as the bank wouldn’t release the money in the investment account. She had been advised that she would need to apply to The Court of Protection to become a Deputy to manage her mother’s affairs. They would immediately want to know why her mother’s money was not being held in a separate account. You should not place yourself in a position where it looks as if you are benefitting from the assets of a person who lacks mental capacity. In fact, one of our clients was arrested for this last year.
The thing with Amy was that in her mind the money would be coming to her anyway, she saw her mother’s money as her own. But it’s not hers. In the first instance, Amy’s dad is still alive, so he would be entitled to receive mum’s money if mum predeceased him. Amy also has a sister, so eventually, she would share in the estate. What if the rules change and the state no longer pay for mum’s care? Her investments would be needed to ensure she was looked after properly.
As I explained this to Amy she was more and more agitated, it was becoming clear that she couldn’t get her hands on the money now. It occurred to me that Amy was up to her eyes in debt and accessing her mum’s money would have been the perfect answer. Thank goodness for The Court of Protection, designed to protect the vulnerable.
This issue is becoming quite a hot potato. A solicitor is not medically trained, but a doctor is not legally trained. Many doctors now refuse to certify as to whether or not a patient has the mental capacity to make legal decisions. I have been dealing with elderly clients for many years. I can often spot telltale signs. I understand why a couple may have decided to come and see me, even if they have never had a discussion between them. The law asks, is the donor capable of giving clear instructions on the day in question? In most cases that would be two days, the first visit to see a solicitor to give instructions and the second being the day that the forms are signed.
The key to protecting everyone concerned is to make very detailed file notes. Who brought the client to my office, why, were they in the room the whole time - no must be the answer - how did the client present, which open-ended questions did I ask, what were their answers? If I feel that the client has a clear understanding of what they are doing and why, then I will let them go ahead. But if I have any doubts, I’ll instruct an expert to carry out an assessment as to Mental Capacity. This will have to be paid for by the client or their family. But it’s important. If you are the only relative trying to help you do not want to be accused of fraud or undue influence by other relatives sometime in the future. From my point of view, I need to do everything I can to protect my client.
Lots of our clients at Emmersons Solicitors have foreign property. Therefore when drafting their wills, we make it clear that this is their last will and testament in respect of property in this country. We ask them to make another Will in respect of their property abroad. They must visit a lawyer in the relevant country as we do not know the law of that country and are not authorised to give advice about their laws.
The same applies to Powers of Attorney. Each country will have different rules. I couldn’t manage your property affairs in Spain or India. I can’t deal with probate in those countries either. So you need to make it your business to tidy up your affairs in this country and in any other country where you have assets. Are you going to live here permanently? Is it worth moving investments over here, e.g. old shares or savings accounts?
Think about your situation; have you protected your investments from grasping hands?
Have you made it easy enough for trustworthy relatives and friends to help you when you can no longer help yourself?
Have you had the Lasting Power of Attorney Conversation?
If you need help or just a brief chat, then don’t hesitate to contact us on 0191 284 6989.
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