Author Archives: stevepett

Make Gifts using a Power of Attorney

When you use a power of attorney (Lasting or Enduring) to make gifts to anyone (including yourself) or to take expenses, there are no specific legal rules. If there is a dispute or a complaint, then the Court of Protection will be called upon to make a ruling. We suspect that a lot of attornies or indeed deputies will be left somewhat embarrassed – or worse, so you might want to read through this case.

Much of English Law is based on precedent – the decisions made previously by Judges, as to what is right in a particular set of circumstances. Other judges may in future find reasons to distinguish their case from this one and make a different decision, but this seems to be a great place to start if you want to get things right.

There are a number of important cases that we will writers must have an understanding of. Not all law is statute based and many of these cases form the basis of the law that applies to lasting powers of attorney.

This is an overview of the case MJ and JM v The Public Guardian [2013] EWHC 2966 (COP). It concerned the authority of a deputy to make gifts under section 12 of the Mental Capacity Act 2005 which allows the following gifts:

Gifts to charities that the donor may have given to; and

Gifts to family members, friends or acquaintances of the donor on customary occasions.

Anything beyond this, approval is needed from the Court of Protection. On Whilst this case a deputy was involved, but the judge in the case said the decision would apply equally to the attorneys of a Lasting Power of Attorney or Enduring Power of Attorney.

Facts of this case on Gifting under a Deputyship.

The case concerned GM, a 92 year old woman suffering from vascular dementia. Her two property and financial affair deputies had made gifts to themselves, their relations and to charities on behalf of GM and now had applied for retrospective approval of those gifts. The judge asked the Public Guardian to investigate and review the gifts and recommend whether or not approval should be granted. It transpired that well over 40% of GM’s assets had been given away! The OPG investigation identified a number of gifts that did not deserve approval along with advising that some “expenses” were in reality gifts to the deputies, these being a car and computers.

Decision: the dangers of generosity…. 

Some gifts were approved, mainly those to charity and one recommended by the Public Guardian’s report for approval. All other gifts were not approved, and the deputies were ordered to repay them. The expenses were also considered unauthorised gifts.

So what is it reasonable to gift under a Power of Attorney?

Gifts falling within a de minimis exception were also approved. The court recognised that there are exceptions to the powers granted in section 12 of the Mental Capacity Act otherwise the court would be overwhelmed by applications.

Senior Judge Lush defined the de minimis exception to be the annual IHT exemption of £3,000 and the annual small gifts exemption of £250 per person, up to a maximum of ten people in the following circumstances:

  • where the person has a life expectancy of less than five years, and
  • their estate exceeds the nil rate band for IHT purposes, and
  • the gifts are affordable having regard to the person’s care costs and will not adversely affect the person’s standard of care and quality of life, and
  • there is no evidence that the person would be opposed to gifts of this magnitude being made on their behalf.

The judge also confirmed that the de minimis exception does not apply to potentially exempt transfers or to the use of normal expenditure out of income exemption and authority would still be required for these.

Senior Judge Lush also gave some guidance on when a gift is considered reasonable:

Firstly, the gift must be a value that can properly be described as not unreasonable. This would be ascertained by considering all circumstances, but emphasis is given to the size of their estate.

By estate, a person’s current and anticipated income and capital, expenditure and debts must be considered.

The first and paramount thing to consider is whether the gift is in the person’s best interests. Other circumstances, in addition to the size of the estate, include but are not limited to:

  • the extent to which the person was in the habit of making gifts or loans of a particular size or nature before the onset of incapacity,
  • the person’s anticipated life expectancy,
  • the possibility that the person may require residential or nursing care and the projected cost of such care,
  • whether the person is in receipt of aftercare pursuant to section 117 of the Mental Health Act 1983 or NHS Continuing Healthcare,
  • the extent to which any gifts may interfere with the devolution of the person’s estate under his or her will or intestacy, and
  • the impact of Inheritance Tax on the person’s death.

So be careful in choosing your attorneys by making your choice well in advance, and make sure they understand your wishes.  Most of us will need other to make decisions for us at some point, maybe only for a brief period after an operation, accident, or sadly, dementia.  But ist pays to get sound advice now, so please do contact us to set the wheels in motion – it takes a while, and once the need arises, it is too late and a deputyship (at a far higher cost) is needed and the choice is no longer yours.

What is a deputy?

New Office of the Public Guardian Services for LPAs

The Use a lasting power of attorney service for new Lasting Powers of Attorney should be a major stride forward in their ease of use. 

How does the Use a Lasting Power of Attorney service work?

LPAs are registered by the OPG on or after the 17 July 2020 will receive an LPA reference number and activation key in their registration letter. Both attorneys and donors on the LPA will receive these details. They can then visit www.gov.uk/use-lpa to create an account and add the LPA by using the reference number and activation key, along with their date of birth. Once the LPA is added, the customer can choose to share the details by generating a secure access code to provide to third party organisations. The third-party can then view the LPA details by going to www.gov.uk/use-lpa , adding the customer name and secure access code. This enables the organisation to check the LPA is valid and offers a downloadable version of the LPA summary to save for their records.

Who is this service available for?

At present only for newer Lasting Powers of Attorney, but they are working on making it available for older LPAs from earlier in 2020 and some from 2019, but don’t yet have a date for this. Both attorneys and donors can use this service as they both receive an LPA reference number and activation key in their registration letters.

Any organisation can access the summary of the LPA once they have been provided with a secure access code from the user. They don’t need to register to use the service. So long as they have the donor’s name and the access code, they will be able to view the summary of the LPA and see if the LPA is valid.

See the service demonstrated below:

Will you be adding in LPAs that have been registered before 2019?

Putting older LPAs onto Use an LPA is something the Office of the Public Guardian are considering, however, there are cost implications and this will not be possible unless there is the funding in place. The OPG is a self-funded organisation and cannot proceed with putting older LPAs on Use until the costs are approved.

What can organisations see when they access the LPA summary?

Use an LPA screenshotDonor and attorney details can be accessed through a secure access code, this includes –

  • Names, addresses and DOB
  • How attorney decisions are made
  • Whether there are instructions or preferences (although the specific instructions and preferences aren’t included)
  • When the LPA can be used
  • Date the donor signed the LPA
  • LPA registration date

What happens if there are specific instructions and preferences on the LPA?

The vast majority of LPAs do not have instructions or preference listed in them. In the small minority of cases where there are instructions or preferences listed on the LPA, third parties should still request sight of the paper document to check these the first time they access the LPA.

 

How is this service helping our users?

The Use an LPA service is intended to better assist donors and attorneys in sharing the details of the LPA with organisations. It provides peace of mind, particularly to those who may be experiencing reduced contact with others, that their wishes can still be actioned, and for attorneys to continue to support the donor.

While newly registered donors and attorneys have access to the Use an LPA service upon registration, there is a banner at the top of the page which, when accessed by anyone, shows whether the LPA is valid and whether the attorney can act while the donor has mental capacity (on property and finance LPAs). There is also confirmation that, in these instances, the attorney can only act with the donor’s permission.

An LPA is an agreement between a donor and attorney(s) and is registered by the OPG on the understanding that the attorney is somebody that the donor trusts. This includes the understanding that, before creating and sending the LPA, the donor has spoken to the attorney about how and when they should act.

How will the third-party organisation, such as a bank or utility company, know if that person does or doesn’t have capacity and the attorney is acting correctly? 

It is important to remember that ultimately, it’s the legal responsibility of an attorney to support the donor with their decision-making and act in accordance with the choices made by the donor in their LPA. This is unchanged from the existing paper process, and it is up to third party organisations to ensure they are satisfied that this is the case. In instances where the donor does not have capacity to make a decision, even with support, it is the attorney’s responsibility to ensure they act in the donor’s best interests.

Can I use this service with anyone? Such as the local council, car insurance, subscription services?

This service is accessible to any organisation who may need to check the LPA details and confirm the LPA is valid. The service is accessed through www.gov.uk/view-lpa and if the organisation has the donor’s name and the secure access code given to them by the attorney or donor, they are able to view the LPA summary. We are working with our partners to inform them of this service and can offer help and support on how to use it.

Will this service affect how and when the attorney can act on behalf of the donor?

When an attorney can act has not changed with the introduction of this service. This means the attorney can only use the LPA to make a decision for the donor if, even with support, they can’t make that decision for themselves so long as that decision is in the best interest of the donor. In instances where the donor has chosen that a PA LPA can be used immediately upon registration, the attorney can use the LPA to carry out wishes of the donor only with obtained consent.

An LPA is an agreement between a donor and attorney(s) and is registered by the OPG on the understanding that the attorney is somebody that the donor trusts. This includes the understanding that, before creating and sending the LPA, the donor has spoken to the attorney about how and when they should act.

It is important to remember that, in instances where the donor has not chosen that an attorney can act for them while they have mental capacity, or for health & welfare LPAs, an attorney can only make a decision on the donor’s behalf where, even with support, the donor is not able to make that decision on their own.

How it works

A link to a demo video which shows how the service works for donors and third-party organisations which you can view here (https://www.youtube.com/watch?v=1UG6vwGB6cE&feature=youtu.be ). This video is purely for demonstration purposes.

 

Coronovirus: Alarming Drop in Mental Capacity

Coronavirus is making life difficult for everyone, but more so for those whose mental capacity is already reduced. Enforced social isolation increases the stresses on everyone and tends to make us feel more anxious, stressed, worried, sad, bored as well as lonely and often frustrated. Advisers report an alarming drop in the mental capacity of those who were previously reasonably ok.  

All of these are things which tend to reduce peoples ability to cope with life and to be able to make Lasting Powers of Attorney (which is our mission.) Whether the effects will be wholly lasting or not remains to be seen, but many people will slip beyond the point at which Lasting Powers of Attorney can be set up, leaving an application to the Court of Protection for a Deputyship as the only remaining route. Bear in mind that only financial Depoutyships are usually granted, leaving Health and Welfare matters in the hands of the Court – and that includes where people live Whether that application is made by the family or by Social Services, it is at the expense of the person suffering reduce mental capacity.

Experience has shown that it is not always easy for people to throw off the yoke of Deputyship even should they fully recover, and when the Deputy is a professional it is likely to be very expensive. Family members may find it difficult to cope with the bureaucratic and record-keeping issues associated with deputyship.

Obviously, everyone over 18 should have Lasting Powers of Attorney (do you?) as misfortune can strike at any time, but here are some tips from the NHS as to how to best keep up your, or a relative, or friends mental capacity:

1) Keep Socially Active

Clearly, that doesn’t mean what it used to. Phone calls, Facebook messages, video calls etc all help. Though the trouble is many older people won’t be up to speed on some of these, so will suffer more.

2) Talk About Your Worries

Very few people are NOT finding the current situation stressful. So talk about your worries and concerns, and encourage the vulnerable to share their worries with you. A worry shared is a worry halved as they say. A little reassurance goes a long way. The Government even has a Chatbot to talk about your worries – why not try it out?
https://api.whatsapp.com/send?phone=447860064422&text=hi

3. Help and Support Others

Just because you are feeling a bit down doesn’t mean that you can’t join Facebook and other groups and encourage other people. A friendly ear helps others feel it isn’t just them.

4. Finances and Regulations

If finances are a problem, or you are not sure what the recommendations are for social matters, check the Government website for advice. That is what it is there for.

5. Keep Physically Active

The fitter your body is, the more likely your mind is to stay fit too. Resist the urge to be a total couch potato, and get up and walk about. Maybe do some gentle stretches once an hour. Exercise will help you sleep too. Maybe find some gentle exercise videos on Youtube. If you can, do more walking than you would normally, or get on the bike if you are up to it.

6. Do things you enjoy

Reading, listening to music (my favourite), gardening, walking, running.

7) Don’t Listen to Negative Fake News

Go to the Government website o#r the BBC or the NHS for news and suggestions – don’t go to the more sensational newspapers who like to shock you, even if the copy under doesn’t match the sensational headline!

8) Relax

Relaxation techniques can help.

Those are just a few suggestions. if you are feeling really desperate, visit this page?
https://www.nhs.uk/oneyou/every-mind-matters/urgent-support/


Contact us to organise Lasting Powers of Attorney before it is too late.