Author: Elizabeth Middleton

It can be difficult to even think about planning for a circumstance in which you lose the mental capacity to make your own decisions. However, with dementia and other neurodegenerative condition rates on the rise in the UK, it helps to be prepared and knowledgeable about what your options are in the event that one day you need to be. 

Appointing  attorneys under Lasting Powers of Attorney give you an option to choose people you trust to manage your affairs if you lose capacity. That opportunity is lost to you if you lose mental capacity. The only alternative is for your loved ones to apply for  Deputyship application at the Court of Protection so the latter process is very expensive, time consuming and has yearly responsibilities to the Court of Protection. 

 The two processes are different but the option you have depends on whether you have capacity or not. 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone to assist you in making decisions, or make decisions for you (as your “attorney”), in case you lose the mental capacity to do so. The appointed person is known as the attorney, and you can choose an individual or multiple people to act as your attorneys. 

There are two types of LPAs. One for  Health and Welfare, the other for Property and Financial Affairs.  It is always best to have both.. A Health and Welfare LPA will give the attorney the power to make decisions about  your health, for example choosing a care home, consenting to having an operation if you are unable to do so, implementing your Do Not Resuscitate instructions or your Living Will.   A Property and Financial affairs LPA will give the attorney the power to make financial decisions, for example paying bills, managing bank accounts, selling a home, and other financial issues. 

To create an LPA, you need to choose your attorney or attorneys, fill out the correct forms, and register your LPA with the Office of the Public Guardian. 

What is a Deputyship Order?

A Deputyship Order is a legal document appointing a person to act as a “Deputy” for someone who has already lost the mental capacity to make their own decisions. In this case, it is not possible to appoint an LPA. Instead, a Court of Protection will appoint a Deputy to act on behalf of the incapacitated person.

To create a Deputyship, a person must apply to the Court of Protection and have their application reviewed by a judge. Like an LPA, a deputyship can be for health and welfare or for property and financial affairs.

What are the differences? 

Mental Capacity

Mental capacity is the ability to make your own decisions. To set up an LPA, a person must have mental capacity at the time they create the document. In the case of a Deputyship, the Deputy is appointed after the person has lost their mental capacity. 

Cost and Timing

Creating an LPA generally takes between eight and 12 weeks and costs £82 to register each document with the Office of the Public Guardian if your income is over £12,000pa. In the case that you lose your mental capacity, your attorney can start acting on your behalf immediately. 

If you lose mental capacity without an LPA in place, a Deputyship application can take between six and twelve months to set up. In addition, it costs at minimum £365 per application, and the fees often go up from there. Because it takes so long to set up a deputyship, this can impact your ability to quickly pay bills or set up care. 

Choice and Control 

When you set up an LPA, you have the ability to stipulate who will be in charge of your affairs and what powers they have. You can choose anyone over the age of 18 to be your attorney, and you can decide whether your attorney or attorneys can act independently or together. This helps ensure you retain input into how your affairs are handled.

In the case of a Deputyship, the family normally apply to the court to be your Deputy but if there is no one who can apply then the Court will appoint a professional Deputy.  

Supervision

A Court-appointed Deputy is under more supervision than an attorney in order to help protect the incapacitated person from financial abuse. The Deputy must make an annual report to the Office of the Public Guardian that details all expenditures made on behalf of the incapacitated person. In addition, the Deputy must take out an annual security bond, which acts as insurance for the incapictated person in the case the Deputy mismanages their funds. 

An attorney and an LPA is under much less strict supervision. Unlike a Deputy, they are not obligated to report to the Office of the Public Guardian. While the Court can step-in if there is evidence an attorney is acting improperly, they are not monitored to the same degree as a deputy. 

Be Prepared

We know that thinking about the future can be stressful but the situation is worse if there are no attorneys appointed and it’s more expensive both in terms of time and money. We believe that everyone should be treated with respect, kindness and receive a personal service that meets their needs in a relaxed, un-rushed environment. 

Elizabeth Middleton Solicitors is here to help you prepare for the future and ensure your wishes are followed, which is why our expert legal team specialises in Lasting Power of Attorney, Wills, Probate and Equity Release. 

Don’t wait for life to happen – Get in touch today to learn more about our LPA services and gain the peace of mind that your future is taken care of.

The death toll is rising across the country, and with it, thousands of people are inheriting their loved one’s estate. While trying to grieve, the estate’s executors have to deal with the legal side of their relative’s untimely passing. 

It is difficult for those responsible for carrying out their family member’s last wishes. The stress the family goes through is impacted depends on whether their loved one left a Will or not. Building societies, law firms, and banks are all needed to assess the value of properties and complete documents to distribute the deceased’s estate accordingly. 

COVID-19 is affecting everyone in various ways, from health issues to legal ones. You need to have all the information possible when executing the estate of your loved one, so let’s address some of the ways in which the lockdown has affected probate law in the UK.

What is Probate?

The word “probate” is thrown around liberally when the subject of inheritance comes about after someone dies. Probate is the process of administering a loved one’s estate. If a person has left a Will it will be sent to the Probate Registry before their assets can be given to their loved ones.  The process is easier if there is a Will because we know what the person wanted. 

If the person didn’t leave a Will when they passed,  the intestacy laws will apply.  Intestacy is the law that determines who inherits and who is entitled to the estate. Intestacy laws  will also determine who will administer the estate if there isn’t a will. The administrator is chosen from the list prescribed by law.  

By obtaining the letters of administration, the first step is complete, and the administrator can start the legal process of administering of finding out what assets and liabilities the dearly departed had before distributing the estate to the surviving loved ones. 

How Has the Pandemic Affected Probate Law in England and Wales??

Managing the estate of your loved one is hard.  COVID-19 has made it more difficult. . The restrictions  to help keep everyone safe have made it even more challenging. Registering the death, valuing their assets, applying for the grant of probate or letters of administration is taking much longer. Before the pandemic it used to take ten days; it now takes between 6 months and a year.

#1. Registering a Death

When a loved one passes, it is vital to register the death within five days of the deceased passing. In England and Wales, most Registry Offices are offering telephone meetings to register a death. 

You can locate your local office by using the Government’s Website to find out where you can call to set up an appointment. While the appointment is free, you will have to pay a fee for each death certificate. The document will then be sent to you in the post.

#2. Banking Institutions

The deceased bank or other financial institution may not be open or operating at full capacity at this current time. Therefore it will take longer for them to provide us with the finances at the date of death. You will need to contact their financial institution to see if you can come in to manage your loved one’s account or if they will be able to do it over the phone.  

#3. Valuation of Property

Physical valuations are challenging to obtain with real estate agents either being closed or overwhelmed with the requests due to the staggering amount of deaths from COVID-19. Instead, an estimation can be used until a physical one can be completed. Physical valuations are vital if an estate is liable to pay an inheritance tax or near the threshold.

#4. Obtaining the Grant of Probate

When you obtain the death certificate you will know whether you need to engage a probate solicitor to ensure the probate is done correctly. You will require one if the estate has property or if the assets are in the deceased’s sole name. Most law offices have modified hours or do video or in-person  meetings to go over the information collected with you. 

If done by video, the probate solicitor will gather the information, prepare the application, and send the paperwork through the post for you to approve.  Once you are happy with the application, you can submit it to the probate registry. The grant of probate will be sent back to you through the post once it has been approved. 

Choose the Right Solicitor for Your Probate Needs

Elizabeth Middleton Solicitors personalises its probate services according to every particular circumstance, and our lawyers are experts in managing and walking you through every step of the process.

Because we know this is a challenging time and a difficult process, we’ll work at a pace comfortable for you. Because we have spent more than a decade specialising in just such affairs, we work tirelessly to make this process as easy as possible on you while being efficient and effective in closing the estate. And because we know that circumstances can change rapidly, we provide the flexibility you need to handle all legal proceedings surrounding the passing of a loved one.

Let us help you manage your responsibility as executor and get you and your loved ones the closure they need. To learn more or to schedule a consultation, contact us and let us help you move forward and ensure that your loved one’s estate is wound up properly.