If you have concerns for yourself and you still have the mental capacity to appoint others to assist you with your property and affairs or person welfare, you can do so under a Lasting Power of Attorney, or LPA. If it is felt that you no longer have the capacity to make this decision and you do not already have in place an Enduring Power of Attorney or Lasting Power of Attorney, it will be left for the Court of Protection to appoint a person called a ‘deputy’ to look after your affairs on your behalf.

A Deputy in most cases tends to be a close relative but in some cases a professional deputy, such as a solicitor. There is a need for the proposed deputy to make an application to the Court of Protection and submit evidence in support. That evidence includes a medical report prepared by a GP or consultant. There are prescribed application forms which must be completed to begin the application. Notice must be given to the person’s close relatives and any person with an interest in their welfare such as their unmarried partner or carer. These persons have a right to raise any concerns about the proposed Deputy’s suitability to act. The Court can refuse an application if they feel the proposed deputy is unsuitable.

Once the application has been sent to the Court it usually takes 3 – 6 months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.

A Court of Protection application can be a costly process. Dependent upon the incapable person’s income, you may need to pay an application fee of £400. The GP/Consultant preparing the medical report will also charge between £50-£250. The Deputy has to also take out a ‘security bond’ to cover their actions as Deputy and this too is payable annually. The bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the bond. The bond tends to be between £100-£300 per annum. In addition, if you instruct a solicitor to assist with the application, costs will be incurred of several hundred pounds minimum plus VAT . All costs involved would come from the incapacitated person’s own money.

Once a Deputy is appointed, they will take control of the incapable person’s finances and property and, if applied for, their personal welfare. The Deputy must always act in the incapable person’s best interests and comply with the Mental Capacity Act 2005 and related Code of Practice. The Deputy must keep accurate records of his dealings with their assets and income and submit an annual account to the Office of the Public Guardian. There are three levels of supervision and the Court will set this.

A Deputy has to account to the Court at all times. Any major decision (such as selling someone’s property) needs the Court’s permission. Every year the Deputy has to provide a ‘Deputyship Report’ to the Court. This gives the Court information on decisions that the Deputy has made on that person’s behalf and also provides summary accounts for the Court to approve.

It is possible for a Deputy to be appointed to make personal welfare decisions on an incapable person’s behalf, e.g. where they should live or what medical treatment they should receive. However, the Court will only appoint a Deputy in extremely limited circumstances such as where there is disagreement amongst family members/carers or where their medical condition means that treatment decisions must be made frequently.

A Court of Protection application is always the last resort. If you have the capacity to appoint someone to act for you, you should take steps to make a Lasting Power of Attorney to protect you in the event that you lose capacity in future.

If you would like further information on the Court of Protection process or Lasting Powers of Attorney, please contact us. All of our Elderly Client Solicitors are members of Solicitors for the Elderly, a recognised national organisation, specialising in this area of practice.

James Shingleton
Solicitor

Morrish Solicitors LLP
(QualitySolicitors Lindley Clough is a practicing name of Morrish Solicitors LLP)

Walter Ventriglia, 47, of Berkshire, ran a company called ‘Legacy & Law’ as a will-writing firm. According to the report, he wrote to clients under the alias Tony Edwards to advise them that under changes to the law their Wills would become invalid unless they hired him to make the necessary amendments. Needless to say, no such changes to the laws had been made.

Ventriglia also ran what he alleged was a Will-storage company, claiming the documents were stored in a secure facility in London where in fact he kept them at his home, in an airing cupboard.

Reading Crown Court sentensed Ventriglia on 19 August after he pleaded guilty to fraudulent trading under Section 9 of the Fraud Act 2006.

For the full report by Jonathon Rayner, please see the Law Society’s report.

For further information on Wills, please see our website www.morrishsolicitors.com or you can contact our Elderly Client Services team on 0113 250 7792.

Thursday 04 August 2011 by Jonathan Rayner

More than 1,000 files containing wills and other confidential information were recently found dumped on the pavement outside a will-writing company in Doncaster, the Society of Will Writers (SWW) revealed this week.

The files were left by staff at another will-writing company, Gainsborough-based Minster Legal Services (MLS), which ceased trading in March on the death of its sole director, solicitor David Hodgson, in February.

The Doncaster company, Express Law, contacted SWW on finding the documents, which then collected them for safe keeping. SWW has so far succeeded in returning 300 of the documents to clients.

SWW director general Brian McMillan said the society has since discovered that MLS had a national network of consultants targeting local charity groups, particularly the elderly, and clients had paid thousands of pounds for wills and trusts that they have never received.

He said the case highlighted the need for will-writers and will-writing companies to be licensed.

‘Four or five years ago, we had to rescue other files that had been abandoned in a barn in Somerset. People pay good money in the belief they are going to receive a valid will. Operators like this taint us all,’ he said.

A Solicitors Regulation Authority spokesman said that MLS was not regulated by it, as it was not a solicitors’ firm. He added that the SRA had placed conditions on Hodgson’s practising certificate in September last year.

Last month, the Legal Services Board announced that it would launch a formal investigation into whether will-writing should be regulated, following a recommendation by the Legal Services Consumer Panel.

Further proof, if any were needed, of the need to regulate the writing of Wills.

Thousands of people are being ripped off by companies providing unregulated services such as will writing, claims the first Legal Ombudsman.

In his first report, Chief Ombudsman for England and Wales Adam Sampson said the most complaints he saw concerned conveyancing, family law and wills.

He called for action to be taken to ensure consumers were not left vulnerable by unregulated services.

Only a tiny fraction of legal services must be provided by a qualified lawyer.

Many others including will writing, divorce, employment and immigration can be done by unqualified and unregulated individuals and organisations.

“One service which crops up a lot is will writing. It’s a service carried out often by will-writing firms who aren’t regulated,” said Mr Sampson.

“Because of this, customers are left with little means of redress when things go wrong.

“We’ve seen similar confusion about claims management companies, with lots of consumers believing they’re getting a legal service even though most of the work is carried out by a non-authorised person. Again, we can’t help.”

‘Unregulated cowboys’The legal ombudsman was appointed in October 2010 and can only act on complaints from those using the services of qualified lawyers.

Consumer organisation Which? and the Law Society have backed the ombudsman and called for more protection for customers.

They said bundling legal services with financial services, including those offered via the internet, had posed serious dangers for consumer protection.

Which? executive director Richard Lloyd said: “As the legal-services market continues to grow in both size and complexity, it’s crucial that consumers who have paid for a legal service that’s not up to scratch know where to turn to get help.

“We want the government and regulators to wake up to the current lack of clarity and to provide a clear and straightforward route of redress for consumers.

“The arrival of a legal-services market in which consumers will, potentially, have complaints about hybrid services poses some serious questions about who they’ll be able to turn to for help.”

Des Hudson, chief executive of the Law Society for England and Wales, said: “The gap in regulation which allows unregulated cowboys to operate in areas like will writing does not just cause unfair competition to solicitors, who provide a regulated, professional service.

“It is also damaging to consumers because the unregulated providers are not insured, do not provide a compensation fund and are not covered by the Legal Ombudsman’s scheme for consumer redress.”

A spokeswoman for the Ministry of Justice said will writing was an important issue and that it welcomed the report.

She added the department will await the outcome of the Legal Service Board’s ongoing work.

Ends.

Want your Will handled by a professional, specialist solicitor? Please contact Tom Morrish or Charlotte Bandawe on 0113 250 7792 or Charles Clough, James Shingleton or Christina Fleming on 0113 224 8084.

Related stories:

The Law Gazette

The Legal Ombudsman’s Annual Report

It is entirely possible to apply for probate and deal with an estate, without seeing a lawyer, but it’s not without risks warns legal group, Solicitors for the Elderly (SFE).

Many professionally drafted wills contain trusts to save tax, to avoid those who inherit paying care fees and to reduce the likelihood of potential disputes. SFE members have noticed an increase in ‘DIYers’ returning to them to seek advice when they have made a mistake or find the paperwork too tricky. Mrs A’s will had included a tax saving trust, but when her husband administered the estate, he paid the whole estate to himself. The solicitor was thankfully able to sort out the matter and avoid future complications occurring when Mr A eventually dies. In Mr G’s case, he sold some shares that had made a gain during the administration of his late sister’s estate and had to pay tax. If he had transferred the shares to himself first, before selling them, he could have avoided the tax.

Yorkshire Regional Co-Ordinator for SFE, Tom Morrish – a Partner at Morrish Solicitors – today said ‘People aren’t always aware of the complexities and assume probate work is straightforward. It is true that it can be, but it is just as true that sometimes it isn’t.  In all but the most straightforward cases, it is important to seek timely specialist legal advice that can actually save you money and worry.’

Many SFE members’ practices will offer to work in partnership with the deceased’s family to help and support them with the legal and technical work. As elder law specialists, members can even add value to their work, for example by identifying cases where money is owed to the estate for care funding, which should have been met by the NHS and assist in making a claim.

Ends.

There are still places available for this seminar.

“Guidance from the Official Solicitor on statutory will and gift applications in the Court of Protection“

Janet Ilett – Senior Lawyer in the Official Solicitor’s Office

The Yorkshire Regional Group of Solicitors for the Elderly (“SFE”) are delighted to host a seminar on the above topic in Leeds on Wednesday 22nd June 2011.

The presentation will take place at 3 Albion Place Leeds LS1 6JL from 2.15pm – 4.30 pm (registration from 1.45pm) and is open to all.

Our speaker is Janet Ilett – Senior Lawyer in the Official Solicitor’s Office.

See booking information below. Booking will be on a first come first served basis. Space is limited. The event will be followed by complementary wine and nibbles.

Please feel free to pass this e-mail on to contacts who may be interested.

Any queries re SFE please contact me or go to www.solicitorsfortheelderly.com

Note – the “member” rate of payment is only available to those who are members of SFE at the time of the event, not to those who have just submitted an application. Please ensure your membership no. is included on your booking form

Tom Morrish
Regional Coordinator
SFE Yorks Regional Group
Tel. 0113 250 7792

1 June 2011 – Thousands of elderly residents face an anxious wait after the UK’s biggest care home company said it would reduce its rent bill amid financial troubles.

The announcement means Southern Cross will pay nearly a third less to its landlords over the next four months.

There are concerns that if this move does not work, its 31,000 residents could be left “high and dry”.

But Health Select Committee chair Stephen Dorrell MP said the government should not consider a bail-out.

“It doesn’t seem to me that it’s the taxpayers’ job to fund the losses that have been suffered by the people who have invested in Southern Cross, that was their risk and it’s their loss,” Mr Dorrell told the BBC.

“What we need to do is to ensure that the care provided to people resident in Southern Cross homes is sustained, and those people’s needs are met.”

Darlington-based Southern Cross recently reported half-year losses of £311m.

The company, which operates 750 homes, warned then that it was in “critical financial condition”.

‘High and dry’

There has been mounting concern over the situation among the elderly residents and their carers and relatives.

Judy Downey, from the Relatives and Residents Association charity, said the developments were worrying.

“It’s a mixture of anguish and concern and panic,” she said.

“The whole business of closure of care homes is something the Relatives and Residents Association has been really concerned about for some time.

“Homes close on a regular basis for one reason or another, and we’re very concerned that they have the same status in law as a corner shop that gives up, and people are left high and dry.”

Roy Lilley, a health policy analyst and former NHS Trust chairman, said Southern Cross was in a difficult position.

“The problem is in a normal business, if you run into trading difficulties, you can circle the wagons, you can close some branches that are not profitable, you can get rid of staff and just generally cut the overheads,” he said.

“But here you can’t do that, you’ve got 30,000 of the country’s most vulnerable people who depend on this company for a service.

“You can’t shove them around, you can’t decant them because clearly some of them are very frail and very vulnerable.”

However, there has been some good news for Southern Cross from the Association of Directors of Adult Social Services, which said local councils would try to help the company bounce back.

The association’s president Peter Hay said: “As councils buying care from Southern Cross, we are willing to work with all parties to support the recovery of the business.

“The care sector has many viable businesses delivering high quality care and we can achieve that for Southern Cross residents if all parties co-operate and continue to put the interests of residents and their families first.”

‘Critical mass’

Southern Cross said on Tuesday that it would defer 30% of its rent for four months while it tried to resolve its financial difficulties.

It also reiterated its belief that a longer-term solution to its troubles would be “forthcoming”.

The firm said it was confident “a critical mass of landlords” would support the move. However, there has been no official agreement.

The rent deferral runs from 1 June to 30 September. Southern Cross said it would issue an update in July.

Company chairman Christopher Fisher said: “We believe that all of the key stakeholders in Southern Cross want this restructuring to succeed.

“We are in dialogue with the Department of Health, our lenders and our landlords and they continue to support the process.

“The objective will be to emerge with a stable and sustainable business model for the continuing care of our residents.”

But financial consultant Paul Saper, who has analysed the private care sector, told the BBC: “They can make a decision themselves not to pay the rent, but their landlords don’t have to turn round and say: ‘We accept that’.

“That’s not going to happen, because these landlords also have responsibility to their shareholders.

“I anticipate, over the next week or two, landlords will start to take back their homes. And why should they not do so?”

From the BBC’s news website.

Sir Gerry Robinson helps two families torn over what to write in their wills.

Lesley wants to leave half the family home to charity, but husband David wants all of it to be left to his two sons by a previous marriage.

Meanwhile, army major Tom is bound for Baghdad, and urgently needs to make a will that includes his two stepdaughters. But his new wife Kiera is against the principle of inheritance and would rather leave everything they jointly own to charity.

Both couples need to face some uncomfortable home truths before they sign on the dotted line.

Sir Gerry is assisted by top lawyer Sue Medder, who sets out the legal options in each case, and writes the final wills. And Sir Gerry gets all the family involved in the debate, because keeping problems secret is no way to solve them.

Deciding who gets what in a will can be one of the toughest choices anyone can have to make. But making no decisions at all and dying without a will can cause rifts that tear families apart.

A judge said it would be ‘”unconscionable” if Dr Gill did not inherit her parents’ farm

The RSPCA has challenged a ruling which overturned a will in which it was left a £2m farm estate in North Yorkshire.

Christine Gill, 59, of Northallerton, won a High Court battle last year to overturn the will, which left her parents’ farm to the charity.

Judge James Allen QC found that Dr Gill’s “domineering” father had coerced her mother into making the will.

On Monday, the RSPCA appealed against the findings at the Court of Appeal in London.

The case was heard by the Master of the Rolls, Lord Neuberger, sitting with Lord Justice Lloyd and Lord Justice Jackson.

Elspeth Talbot Rice QC, for the RSPCA, told the court that one of the issues for decision was whether the judge was “wrong to find that Mr Gill unduly influenced Mrs Gill into executing her will”.

Father ‘a bully’ Dr Gill, who is represented by counsel, is contesting the appeal.

Judge Allen said it would be “unconscionable” if Dr Gill did not inherit Potto Carr Farm, near Northallerton, where she voluntarily helped out during her spare time over a period of more than 30 years.

Mr Gill died in 1999, aged 82. It was only when her mother died in 2006, also aged 82, that Dr Gill saw the will, in which her parents had left the farm to each other and then to the RSPCA when both died.

The judge found that Dr Gill’s mother had wanted her daughter to inherit the farm but Mr Gill – who he described as a “bully” – had exerted pressure over his wife to favour the RSPCA.

Monday’s appeal is being closely watched by 10 other leading charities who released a joint statement saying they were “very concerned at its possible implications for the charity sector”.

Law ‘is clear’ The RSPCA said: “The RSPCA feels strongly that Mrs Gill’s testamentary wishes were clear and the judgment in favour of Dr Gill fails to recognise that.

“It also undermines the very essence of testamentary freedom that this country enjoys.

“The Gills had already provided substantially for their daughter during their lifetime, which included a large contribution towards the purchase of the farmhouse in which she now lives.

“Whilst the charity appreciates Dr Gill’s disappointment in failing to receive her mother’s estate, the law in this country is clear; individuals have the testamentary freedom to leave their estate to whoever they wish.”

The hearing was adjourned until Tuesday, when the judges are expected to reserve judgment.

This case shows clearly the risks involved in not leaving a Will which is a clear statement of your own intentions. Although the RSPCA alleges that they are obliged to pursue the legacy, the question arises whether the main beneficiary in all this litigation is perhaps the charity’s own lawyers.

Leaving a Will which clearly states your own intentions will help to avoid unnecessary distress, pain and litigation of those who you leave behind.

For further information, please contact our Yeadon office on 0113 250 7792.