Lasting Power of Attorney, Power of Attorney, Uncategorized

Lasting Powers of Attorney – helpful or not?

Denzil Lush, former Senior Judge of the Court of Protection, warned the public recently that he believed Lasting Powers of Attorney (LPAs) may leave elderly people open to abuse.

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

In the foreword to a new book on the subject, Mr Lush raised concerns about the “lack of transparency” in how appointed attorneys manage older people’s finances.

However, we in the Morrish Solicitors elderly client team, think LPAs are effective safeguards when created responsibly and national organisation Solicitors for the Elderly (SFE) agrees:

“Senior Judge Lush’s comments have given rise to fears that LPAs are a direct avenue for financial abuse. However, his comments must be put into context, as his 20-year career at the Court of Protection will have presented him with the very worst cases of financial abuse.

“An LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. Senior Judge Lush’s comments should highlight the clear need for professional advice when considering powerful legal documents of this nature.”

Top tips on drafting a lasting power of attorney

SFE is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers and chartered legal executives, who provide specialist legal advice for older and vulnerable people, their families and carers. SFE has been campaigning to ensure essential checks and controls are conducted when making an LPA. Here are their top tips to ensure your LPA is effective, legally robust and safe:

Plan early – While you have capacity, it’s vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can’t appoint an attorney once you lose capacity.

Choose carefully – Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility.

Consider appointing a professional – A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost.

Think about different circumstances – Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?

Address the difficult questions – Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document.

Seek professional advice – Shop-bought and online LPA kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that an LPA is what they want.

Keep your plans current – Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

Tom Morrish and Monika Volsing of the elderly client team here at Morrish are both fully accredited members of Solicitors for the Elderly. They and their colleagues would be happy to discuss LPAs with you – contact us on 0333 3449609.

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Court of Protection, Lasting Power of Attorney, Power of Attorney

The mysteries of the Court of Protection

What is the Court of Protection?

This is the Court which deals with matters relating to the affairs of people who are not able to handle their own affairs. Typically it deals with cases where elderly people develop dementia or other illnesses affecting mental capacity, which means that the individual is not able to manage their own financial affairs. Other cases involve people who suffer head injury following clinical negligence or road traffic accidents.

Why is the Court needed?

When people cannot make their own decision, then the Court needs to ensure that appropriate decisions are made for these individuals, allowing actions to be taken which are in the best interests of the person concerned.

What if there is a Power of Attorney?

If the individual has signed a Power of Attorney at a time when they were fit and well, then the person appointed as Attorney will be able to make the decision, and usually this will avoid the need for the involvement of the Court of Protection.

An individual might have signed an Enduring Power of Attorney (before 1st October 2007) appointing someone to manage their financial affairs. From the beginning of 1st October 2007 individuals have been able to sign a Lasting Power of Attorney for property and financial affairs (appointing someone to deal with their financial affairs) or for health and welfare (appointing someone to make decisions about health and welfare needs).

What is a Deputy?

A Deputy is someone appointed by the Court of Protection to supervise the affairs of a person who is unable to manage their own affairs. A Deputy might be appointed for finance, which means that that person can manage the financial affairs of the person concerned, subject to supervision from the Office of the Public Guardian. The Court may appoint a Deputy for health and welfare, which means that the Deputy can make health and welfare decisions for such persons in cases where that person cannot make their own decisions. Appointments of Deputy for health and welfare are much less frequent than for financial affairs, but the Court will make such an Order in necessary cases.

Specialist Advice

Members of the Elderly Client Department at Morrish Solicitors are experienced in handling Court of Protection matters. Tom Morrish has been appointed as Court of Protection Deputy in dozens of case over the last fifteen years or so supervising the financial affairs of elderly persons who have lost their mental capacity, or of persons who have suffered head injuries as a result of an accident or clinical negligence.

Can the Court of Protection be avoided?

In many cases this can be avoided by advance planning. Getting your affairs in order by signing Lasting Powers of Attorney in most cases avoids the need for the Court of Protection, even if later in life you suffer deteriorating health and an inability to manage your affairs.

Contact one of our Elderly Client Team for advice in this area of work. It’s always best to obtain specialist legal advice rather than dabbling on the Internet or obtaining misleading advice or comment from friends who think they know the answer.

Yeadon Office
Tom Morrish
Kiranjeet Chana
T: 033 3344 9609

Pudsey Office
Charlotte Bandawe
Christina Taylor
T: 033 3344 9607

Lasting Power of Attorney, Power of Attorney

Lasting Power of Attorney Month @ Morrish

What is a lasting power of attorney (LPA)?
It’s a legal document that lets you (the ‘donor’) appoint people (known as ‘attorneys’) to make decisions on your behalf. It could be used if you became unable to make your own decisions. There are two types of LPA: health and welfare; and property and financial affairs. You can choose to make one type or both.

You must be 18 or over and have mental capacity – the ability to make your own decisions – when you make your LPA. You may need a court-appointed deputy instead if you’re not able to make your own decisions.

Why do you need an LPA?
If you find you’re in a position where it’s getting difficult to get out of the house to go to the bank, post office, etc, or you’ve been diagnosed with a condition that means your mental capacity will deteriorate, like dementia, making an LPA now could help you choose someone you trust to help you make decisions or act on your behalf in the future.

A health and welfare LPA allows you to choose one person or more to make decisions about things; like your daily routine (e.g. eating and what to wear), medical care, moving into a care home and life-sustaining treatment. This type of LPA can only be used when you’re unable to make your own decisions.

A property and financial affairs LPA lets you choose one person or more to make decisions about money and property for you; like paying bills, collecting benefits and selling your home. This type of LPA can be used as soon as it’s registered, with your permission.

If it sounds like either of these LPAs could be useful to you, a family member or friend, contact us for further details of how we can help you to obtain them.

During the month of February, we will be offering a £75 discount per LPA to our Leeds and West Yorkshire based clients.

Call 0113 2507792 for Tom or Monika at our Yeadon office or 0113 2248080 for Charlotte or James at our Pudsey office. Alternatively, you can email info@morrishsolicitors.com (please quote ‘LPA Month Morrish’).

Care Home, Dementia, Living Wills, Power of Attorney, Probate

Dementia awareness

Sadly the prevalence of dementia is increasing within our ageing population. There are more cases and people are living longer with the illness. This is causing pressure on the NHS, care homes and stress for those suffering and their families.

At Morrish Solicitors our elderly client department are looking to assist those who have received a diagnosis of dementia and their families or carers. We recently attended, through a professional organisation Solicitors for the Elderly (www.solicitorsfortheelderly.com), a meeting with the Alzheimers Society to see how members of Solicitors for the Elderly could assist.

At Morrish Solicitors we are seeking to make our four offices Dementia friendly and will be joining the Dementia Action Alliance (www.dementiaaction.org.uk) We are looking to see how we can make our services more user friendly for the ageing population.

With offices in four locations around West Yorkshire Morrish Solicitors are on hand to assist. In dementia situations it is important to act early to sort out legal issues and our four solicitors are always ready to help.

Court of Protection, Disputed Will, heir, Inherit, Inheritance tax, Legacy, Power of Attorney, Probate, Wills

Chief Ombudsman says thousands ‘ripped off’ by unregulated will writers

From the BBC’s website 18 July 2011Last updated at 02:33

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

heir, Inherit, Power of Attorney, Probate, Wills

Panorama expose stirs the pot

The Financial Times Adviser reports that The Will Writing Company is refuting claims made by Panorama’s broadcast last night (Monday 9 August) which exposed the lack of regulation of the willwriters industry. 

The Will Writing Company has hit back at the BBC Panorama programme that widely criticised unlicensed will-writers and a number of will-writing firms for unfair and unethical practices.

Not all will-writing companies were like those that were exposed on the programme claimed the Will Writing Company.

The documentary focused on three firms and highlighted the lack of standards that many will-writing companies subscribe to.

The Will Writing Company said it welcomed the program and as a founding member of the Institute of Professional Will Writers (IPW) since 1990 it recognised early on that proper training and ethical procedures would have to be an essential part of the industry.

It said the Panorama programme took the view that people should only go to a solicitor for will planning and should avoid professional will writers.

The Will Writing Company said solicitors actually need no personal development or qualifications in this area after university.

A member of the IPW has to demonstrate continuing professional development much the same as a financial adviser to retain their professional status.

Panorama refused to accept comment from IPW.

Tom Gormanly, managing director at The Will Writing Company, said: “Of course every industry will have people within it that will attract criticism, some wholly justified as in last night’s programme.

“But the tighter the controls and the better the training the less likelihood that anything untoward will happen.”

Mr Gormanly said his message to financial advisers was clear, not all will writers were the same and if you choose to use the service of one of them, just make sure they are a member of the IPW.

http://www.ftadviser.com/FTAdviser/Pensions/Personal/RetirementPlanning/News/article/20100810/23cc232c-a45e-11df-a0c7-00144f2af8e8/Will-Writing-Company-hits-back-at-Panorama-claims.jsp 

Here at Morrish Solicitors our Wills, Probate and Elderly Client department consists entirely of qualified solicitors who have specialist training in this particular area of law.  They each undergo set units of Continuing Professional Development (CPD) Training every year and are active members of Solicitors For The Elderly, Help The Aged and the Society of Trust and Estate Practitioners in the region. 

Solicitors are highly regulated for many reasons, including that the bonds of trust existing between a solicitor and client must, by their nature, be above suspicion.  The Solicitors Regulation Authority ensures that solicitors meet those high standards of trust and, where they fail, are subject to strict and just retribution. 

The public, and particularly the elderly, the dying and – yes – the dead, deserve to know their trust is well placed.

heir, Inherit, Legacy, Power of Attorney, Probate, Wills

BBC’s Panorama: Wills – The Final Ripoff?

In case you missed Monday night’s broadcast, here’s the link to watch the show on BBC’s website. 

http://www.bbc.co.uk/programmes/b00tfqqj 

Panorama investigates companies who make a good living from writing your Last Will and Testament, and exposes the shocking financial pitfalls that face unwary consumers. Is it time for this industry to be properly regulated by law?

Credits

Presenter
Jeremy Vine
Reporter
Vivian White
Producer
Stephen Scott