Legal Services
Frequently Asked Questions
- What happens if I become incapable of managing my own affairs and I haven’t prepared an Enduring (or Lasting) Power of Attorney?
- What is a Living Will?
- Should I consider making gifts during my lifetime rather than in my Will?
Below are some of the questions we are asked most frequently in relation to Elderly Client Services.
If you become mentally incapable of managing your own affairs, an application has to be made to the Court of Protection for someone to obtain authority to take over and manage your finances. The person appointed to do this is called a Receiver and is usually a family member or close friend, although anyone concerned about protecting your assets can apply.
The Court of Protection will assess the applicant’s suitability to act as Receiver for you. They will also require a medical certificate to be completed by a doctor confirming that you are no longer capable of managing your own affairs.
Notice of the application has to be sent to any relatives who are closer to you, or have the same relationship to you as the applicant, informing them of the proceedings.
Once the applicant is approved as your Receiver they can take over control of your affairs and have a duty to manage your finances in your best interests.
Applying to the Court of Protection can be a difficult and costly process and we recommend that you consider setting up an Enduring (or Lasting) Power of Attorney to avoid this process. By arranging one of these you have more control over who is appointed to act for you and you can clearly state your wishes in advance.
A living will or advance directive is a formal document in which people can set out in advance what kind of medical treatment they wish or do not wish to receive in the event that they subsequently become incapable of communicating their own wishes.
A living will is concerned with medical treatment only and does not deal with a person’s property or funeral requests, which should be dealt with by means of an ordinary will. In the document the patient can express his or her wishes as to the medical treatment he or she wants or does not want in the event of terminal illness. Patients can also record particular types of medical treatment which they may or may not wish to have, e.g. artificial breathing or feeding.
Such documents are commonly made by people with terminal illness but can be made by any adult at any stage of life provided that they have mental capacity at the time the document is signed.
The legal effectiveness of a living will depends on the person’s competence at the time of signing and on the decision by the patient being an informed one. For this reason it is advisable for a person considering making a living will to discuss the matter with a doctor (who need not be their own GP) and for the doctor to indicate either on the document itself or in a separate note that discussion has taken place.
We recommend anyone considering making a living will to contact us to discuss the legal issues involved.
Should I consider making gifts during my lifetime rather than in my Will?
Depending on your financial circumstances there may be benefits in giving away part of your estate during your lifetime rather than waiting until you die.
There may be tax advantages, for instance by reducing your estate’s future Inheritance Tax liability, although there are time limits and rules which can restrict this, and we recommend seeking advice before making such gifts.
Many people feel that the main benefit of this type of action is the pleasure they derive from actually seeing their loved ones benefit from the gifts which they receive while they are still alive.
Contact us for a consultation or follow the links for more information.
Elizabeth CJ Newbold ~ David P Coffey ~ Jonathan F West ~ G Neil Dring