Issues affecting the elderly
We are often asked for general advice about what can and should be done in circumstances which involve older people, either by them or their relatives/carers. We thought it might be helpful to put together some notes about the things which most commonly arise. This might avoid the need for legal advice or help people make the best use of their professional advisors, by providing a summary of some of the more basic information upon which bespoke advice can be given.
Care costs: some people need extra help to stay happy and safe in their own home, others may move into a care home. The cost of this extra support can mount up, although the local authority might provide some means-tested help. It may also be possible to get some financial help from the NHS. This can be a complex area, and much has been written on the subject. Please ask us for more information/advice if you have any concerns about this respect of your care.
Deputyship: if someone loses the capacity to deal with their own affairs without having appointed attorneys, they will need a deputy to be appointed by the Court. The procedure is slow and expensive, and is best avoided by using a Lasting Power of Attorney.
Powers of Attorney: these give someone else the right to deal with your affairs. There are several types:-
General Power of Attorney – this allows someone else to deal with all or some of your financial and property affairs whilst you are still capable of managing (and so supervising) them yourself. They are quite rare and of limited use.
Enduring Powers of Attorney – these allow someone else to deal with your financial and property affairs, provided they are registered with the Court of Protection; they can become effective/continue even if you lose mental capacity. They were replaced in 2007 by Lasting Powers ofAttorney, but are still valid.
Lasting Powers of Attorney – there are two types:-
• Finance & Property – this allows someone to deal with your finance and property affairs now and/or when you lose capacity to dealwith them yourself. You can appoint replacements and impose restrictions/give guidance.
• Health & Welfare – this appoints someone to make decisions about your day-to-day care and medical treatment if you are unable to do this yourself and are most useful in cases where there is no close family, or the person you would want to make decisions is not a close family member.
Both types of Lasting Power include a ‘Certificate of Capacity’ to make sure the person making the appointment is mentally willing and able so to do. This may need to be completed by your Doctor, particularly if there is any doubt about this. Both Powers also need to be registered with the Court of Protection before they can be used.
Wills: these say who should inherit what is left when you die, and who is responsible for making sure that happens. If you do not have a Will, the law says who will inherit – which might not be whom you would want! The Law is very strict about what makes a Will valid, so it is probably safest to get professional help from a solicitor.
Inheritance Tax: this is the tax your estate pays if you die worth more than £325,000. This sounds simple and drastic, and it can be very expensive, but the rules can be complex and there are some things you can do to reduce the impact by planning ahead. Married couples can sometimes now use two lots of £325,000 on the second death.
If you are worth more than £325,000 and/or you have made substantial gifts in recent years, it is worth speaking to an expert (solicitor, accountant or independent financial advisor) to see what, if anything, you can/should do.
Gifts: it can be very tempting to give substantial gifts to those we love, especially if they are struggling financially in these difficult times. However, this generosity may have unfortunate consequences, both with your own future financial well being, costs of care and Inheritance Tax. It is always best to speak to a professional advisor (solicitor, accountant or IFA) before succumbing to this urge, or indeed pressure from others.
Living Wills/Advance Directives: these are a way of trying to influence the treatment you receive if you become too poorly to make decisions at the time. This can include ‘do not resuscitate’ type instructions (in which case they must be in writing, signed and witnessed), but can never take effect as an advance request for euthanasia or permission for someone to assist a suicide. Although the legal requirements are less rigorous than for ordinary wills, it is still advisable to get some help (perhaps from your solicitor or GP) and discuss your wishes with your family. Good care homes will be happy to discuss this with you, and indeed help you create a proper record of your wishes.
For more information, or to discuss your own situation, contact Irene Chenery, a member of the Solicitors for the Elderly specialiat panel, by telephone or email firstname.lastname@example.org