Latest news articles and updates from Jennifer Margrave Solicitors LLP
We are delighted to announce that we have won a gold award in the Best Container Garden in Guildford in Bloom 2016. The certificate is now proudly displayed in the office. 15 September 2016
The Sunday Times, Money section, 22 May 2016
Extra inheritance tax exemption for children?
Role reversal and how to cope with it
All change for Lasting Powers of Attorneys - again!
St Valentine and his arrows...
How to get the best out of your solicitor
Published letter in Surrey Advertiser re elderly population statistics
Financial abuse and what to do about it
ABS - what does it mean to you?
What do you own on the internet?
Moral tale to cheer the chill of winter
Charity begins in our home county
It's time we talked about...death
How we became dementia friendly
Lasting and appreciative Christmas present
I went to maintenance classes when I first learned to drive so that I understood how my car worked and quite often carried out simple repairs myself. It was easy then, when, the engine was displayed when the bonnet was opened, with the carburettor to one side, the spark-plugs easy to see, and the fan-belt accessible. It’s not so easy now of course, with all the electronics and sealed units, but I know some people who have made a car from scratch, not necessarily with a kit.
The basic idea is easy to comprehend; there is an engine, which, if it works, is fired up, it creates power that transfers by a series of cogs to the mechanism that turns the wheels and off you go. Of course it’s much more than that. The engine has to be finely tuned, the spark plugs in the right position and the carburettor has to be clean and calibrated so that the right mix of air and petrol reaches the spark plugs at the right time. The gear box has to be just right and all the connecting rods oiled and, well, connected, for the power to be translated into the wheel movement. In the old days we also had chokes, remember them? It was another piece of the mechanism that had to be finely tuned.
Technology has moved on and now there is so much computerisation to modern cars that it would be nigh on impossible to build a safe car that complies with all the health and safety regulations that apply so only a technophobe would attempt the task. It is still possible to buy a car kit online but nobody knows how that car will work until it is tested on the road, and then it may be too late to change.
So, why am I talking about making a car? The key is the idea of people doing something technical for themselves.
Recently we have been asked to look at home-made wills to make sure they are valid, and we are prepared to do this for a small fee, and quite understand that some people, with few assets, want to save some money. One person told us of a website where you pay less than two cinema tickets and you have a choice of a multi-number of clauses you can download to make your own will; like a car kit. I am pleased to say the will he had compiled was largely valid, but it was eight pages long when a professionally drawn up will would have been about two pages long. It was as if he had decided to take various options on the engine, the gear box and the carburettor and combine them. In fact one home-made will had two clauses that contradicted themselves and we had to point this out.
In today’s world, where there are complexities of family, assets, taxes and the way an estate is administered, and, additionally, legalities which can be obscure, is it a good idea to ‘make it yourself’ and risk it not working when it is too late?
© Jennifer Margrave Solicitors LLP
January 2017
You’re desperately trying to find a homely place for your elderly relative. You’ve been told what to look out for; kind staff, a pleasant smell, activities and good food. But now there’s something else you may have to consider; the financial viability of the organisation.
There used to be a care home company called Southern Cross which, in 2011, went into liquidation and the residents all had to find other homes; not a pleasant position to be in when elderly, frail and sometimes bed-bound. However, that closure is not an isolated incident, and the situation is now escalating with restrictions on funding from social services and salaries increasing. There is also the question of complying with ever increasing regulation and training.
A further problem has been the time taken, especially in Surrey, by the social services financial team. In one case we have been dealing with, they have taken a year to organise payment of the funding. In the meantime the care agency had been waiting to be paid, which, with a small care company can mean the difference between good cash flow and bad.
In one well publicised case the local authority (not Surrey) made a mistake in the advice they gave to the care home and the family about who should be funding an elderly gentleman when his financial circumstances changed. When his fees weren’t paid, the care home evicted him and he died a few months later.
So, what to do? In the first instance, find out if the home is run by a family or a limited company. If it is a family run home, share your concerns with them and ask them to confirm they are financially viable. For instance, do they have a large mortgage on the property? Explain your concerns that you want the home to look after your elderly relative for the foreseeable future and are aware that care homes are under pressure and many are closing. If it is a good care home, they will address your concerns, even if they don’t let you see their detailed finances.
If the home is a limited company, it might be possible to look at their financial records at Companies House. What you would be looking for is the level of indebtedness; if there are large sums owed to others than they could be called in at any time or if interest rates rise they may not be able to pay their debts and have to close.
Local authorities usually have a list of homes in their area but are not allowed to recommend any homes. It might be sensible to look at the reports in the Care Quality Commission’s (CQC) website, to see if there are any alarm bells. The CQC is a government body that monitors care agencies in the UK.
In addition, it is sensible to ensure there is enough money to pay the fees for the foreseeable future but also be aware of what funding is available from the state; which is a whole different article! But one point to bear in mind is that, if your relative’s funds are likely to run out within a year or two, you should try to liaise with social services to ensure they will pay the particular care home fees that you have chosen, or that the care home itself will accept the local authority rates. In this respect, I have had one client who was told she had to move out once she had applied for funding from the local authority.
It is a shame that it is necessary to worry about funding at a distressful time when trying to care for an elderly relative, but a little preparation will prevent unexpected shocks.
© Jennifer Margrave Solicitors LLP
January 2017
In a recent consultation carried out by AgeUKSurrey and Healthwatch Surrey, it was mentioned that, when it came to health services, the elderly maintained a stoical approach. They didn’t necessarily rush to the doctors’ surgery for every little ache and pain, preferring to use the medication they kept in their own cupboard.
The point was made that many of the elderly remembered when the NHS was set up and were grateful for the service, knowing what it was like before. In other words, they try not to complain about the services they receive although, having interviewed a sample group across Surrey, the consultation did find some failings – especially with the booking of appointments and the 111 out of hours service.
So, what does this have to do with a law firm?
Firstly, our firm specialises in advising ‘the elderly’ – always remembering that this can cover an age group of approximately forty years as we have some clients who are over 100, and the accepted wisdom is that the term ‘elderly’ can be anyone over sixty. Of course, we have clients younger than this and we’re happy to advise them, but we are trained to appreciate the special requirements of the elderly, whether it be physical or mental frailty.
But we also know that our older clients are stoical, as it states in the consultation, but they are also proud, and don’t like being ‘talked down to’. In other words, they are all as individual as can be. And that is the joy of the work we do, listening to the tales our clients tell of their lives and how they want us to act for them, whether it is preparing powers of attorney for them, wills or assisting when they are moving.
I wonder what the next generation of the elderly will be like; those who lived through the sixties, with protest in the air and rebellion against the accepted wisdom of their parents’ generation, and not having experienced hardship through two World Wars? Should we, as lawyers, be prepared to be challenged and argued with, by a generation who couldn’t imagine living ‘when they’re sixty-four’ or ‘People talk about my generation, things they do look awful cold, hope I die before I get old.’
Never mind, they’ll bring their own stories but hopefully we can still provide them with legal advice.
© Jennifer Margrave Solicitors LLP
September 2016
Some of you may have seen the television programmes about 100-year-olds driving. Most of the people featured were inspiring – one man driving in Russia, to find war-time friends, another having a ride in a racing car called an Allard that she had driven up to the age of 88 – and now regretted getting rid of it when she stopped driving.
However, some of the scenes of driving were quite worrying and I am sure we all know elderly relatives, neighbours or friends who should not be driving, but it is not the age that matters, it is their ability behind the wheel that counts.
Although older people have to take periodic tests, they can ‘self-certify’ as to their fitness to drive and few voluntarily give up their licence. On one occasion, I was acting for a 90-year-old who had had two accidents, luckily with just car damage, but she could only remember one of them. The police who were going to prosecute and apply for her licence to be taken away kindly agreed that, if she gave up her licence voluntarily, they would not take her to court. Their aim was to get what they saw as a dangerous driver off the road. My client reluctantly agreed, but I felt like a robber as she handed over her licence, as I knew her life would change.
It is always going to be frightening to stop driving, especially as we get older and less capable of ‘jumping on and off buses’ i.e. less mobile. There may be medical conditions that make it illegal to drive, such as failing eyesight or a stroke. However, I was surprised by one person the television programme highlighted, as it was suggested that his increasing deafness made him a dangerous driver. Or was this just an excuse his 70-year-old son gave to try to persuade father to give up the car?
It is not always easy to take taxis or use public transport. For instance, the reason that the car had to be given up might be the reason why a taxi is useless as well; a stroke might mean paralysis of a limb so that getting into and out of a car of any sort is not possible.
Giving up driving therefore means giving up freedom which can result in increasing isolation as social activities are curtailed, even going to the shops might be difficult.
What facilities are there to help those who have to give up?
Firstly of course, it is hoped that the family understand the situation and try to spend time taking the elderly relative out and about.
Then there are taxis, if convenient, and I usually advise clients that, if they sell their car, they should open up a ‘taxi account’ using the money they would usually spend on a car, such as car insurance, tax and maintenance, to pay for others to drive them around.
In and around Guildford there is Dial-a-ride which, although it has to be booked, is a useful means of transport for the elderly and infirm. There are also volunteer drivers attached to churches and other social organisations. And then there are buses, and the bus pass which means such journeys are free.
So let us celebrate the centenarians who still drive safely, but be kind to those who have given up and ensure they still get out and about.
© Jennifer Margrave Solicitors LLP
July 2016
Some of the most upsetting matters we as lawyers deal with is when parents die, leaving young children and without making a will. In today’s complicated world, it happens more often than is believed, with car journeys and holidays abroad. Another complexity is that many couples do not marry, even when they have children.
For the sake of a few hundred pounds, the family – not only the young children - but parents, siblings close friends and even ‘remoter’ family such as uncles and aunts are thrown into disarray. The family will not only have to deal with the shock, but with myriad authorities and paperwork.
Obviously the first question is going to be who will look after the children? But we lawyers will have to attend to practicalities such as how will the mortgage be paid? How will those caring for the children be able to access funds or even provide the rooms for the children?
The question of who should look after the children can often cause dissent; should it be grandparents? Uncles and aunts? Close friends of the family where the children have had ‘sleepovers’ or who have shared the school run? Sometimes social services are involved and may have criteria that the family do not like. Whoever is chosen eventually, they will be appointed guardians, or in some cases, even adopt the orphaned children.
But as lawyers, we have to consider who is going to deal with the estate and protect the funds for the children who will inherit when they are eighteen, no matter that they may not be mature enough to know how to deal with large sums. If parents own a house, will this need to be sold or can the guardians move in and care for the children in the family home? What would happen to those guardians when the children get to eighteen and want their share of the estate; will the house have to be sold then?
When any person dies, the assets in the estate are frozen until the formalities are completed, and probate is obtained. This can take some weeks, so no bills, such as the mortgage are paid during this time. This can be a problem if the children are being privately educated, although most creditors are understanding.
Another problem is that most young parents are too busy caring for their children to put their affairs in order and it can take some weeks before all the assets are ascertained, adding to the delay.
Those who are appointed to act as the administrators will continue to act, once the estate is complete, as trustees, and their duty will be to protect the assets for the children. For this reason, when we talk to clients about appointing guardians in their wills, we recommend that the executors are different from the guardians, as the roles are different. A guardian might want to take the children to Disneyland for instance, but the trustees, thinking of the assets and the future, may have invested for the long term and would not consider that a reasonable expense. On the other hand, if the estate is large, then the trustees would make regular payments to the guardian for the maintenance and education of the children.
If a will is made, a decision can be made to retain funds in the trust until a greater age than eighteen and, from my experience, this is very sensible. In one estate I dealt with some years ago, a beneficiary who was approaching eighteen contacted me and insisted she wanted the money on the day of her birthday because she wanted to buy a Golf GTi, and use the rest to pay the exorbitant insurance on her new performance car. I had to agree, but was saddened me that the funds that had been nurtured for some years would disappear on a wasting asset.
So, what to do? Once again, as I’ve mentioned in other articles, it is sensible to make a will, and appoint executors who can deal with the administration of the estate, while appointing guardians who can take the children under their wing. At the time of making the will, we advise clients on how they should view these two important roles.
© Jennifer Margrave Solicitors LLP
July 2016
We all know about the Mr Men books – there’s nearly fifty of them, but the saddest is Mr Forgetful, number fourteen in the series.
Mr Forgetful can’t remember where his bathroom is, and ends up in the wardrobe.
He remembers that he needs to post a letter but by the time he gets to the post office he’s forgotten why he went there.
He’s told to tell a farmer about an escaped sheep on the road, but tells the farmer, when he eventually meets him, that there’s a goose asleep in the rain – a classic case of asphasia (mixing up words).
* SPOILER ALERT! *
Luckily, all those who deal with Mr Forgetful are kind to him; the postmistress suggests he wants a stamp, and eventually, the farmer returns with Mr Forgetful to find the sheep.
But what must it be like for those suffering from some form of dementia which means they can forget where they are? Or they forget what they have gone out to buy?
Our firm often comes across such people and we have the difficult job of trying to assess whether their forgetfulness means they can understand the legal issues involved. But it is not always the case that, just because a person forgets what they are told, they do not have the capacity to tell us what they want, such as writing a will, or appointing an attorney; so long as they are consistent and are not being pushed into saying what they want by others.
Sometimes relatives tell me that their mother, father, or other older person ‘want to give me their house’. We see the person on their own and quite often, having taken all the factors into account, the older relative decides not to make the gift. They have been able to understand the complex issues and make an informed decision. The person may forget what has happened, but, if we ask them again in a week or two, and they still refuse to make the gift then they are being consistent and the lack of recall is not necessarily important.
It is, of course, a bit more complicated than that; it depends on how complex the legal issues surrounding a decision are, and whether the person can take in those complexities, so that they can make an ‘informed decision’.
Returning to Mr Forgetful; we try to be ‘kind’ like those dealing with him, but we always have to take into account the fact that we have to be objective when advising such as he.
Finally, I think this little book is a good way of introducing youngsters to the reasons why granny, or even more usual these days, great-granny, acts strange and might not remember their name.
© Jennifer Margrave Solicitors LLP
July 2016
The weekend papers, television and news websites have recently been highlighting scams whereby people who are involved in house buying/selling have lost hundreds of thousands of pounds when emails between them and solicitors were intercepted by scammers. Some of the articles criticised lawyers – unfairly we feel - for not having sufficient security on their email systems. It is in fact not just us in the profession that are targeted for email interception; in fact law firms would probably have a lot more security on their email systems than an individual client. In some of these cases clients have been hacked, emails from solicitors intercepted and a revised email forwarded to clients with a different bank account.
This scam has been dubbed ‘Friday afternoon fraud’ because that is the busiest day of the week for completions of sales and purchasers and there is a possibility due to the majority of transactions that a scam goes undetected. Maybe the solicitor who is expecting the funds contacts the client to say no funds have arrived, or the client chases the solicitor. By then the funds have moved through various accounts, usually disappearing overseas where it cannot be traced.
So what steps can we all take to protect ourselves?
Most lawyers would never exchange bank details by email but even if we do receive an email from a client or another solicitor giving us bank details, we phone to confirm the information, especially if the email is received a few days before monies need to be transferred.
Why do we traditionally want to move house on a Friday? Of course, there are chains, so that if one person chooses that day of the week, all the people in the chain have to agree and I can understand that people want to use the weekend to settle into their new house but with moving house being one of the most stressful and unusual events in one’s lifetime, so why not consider a move in the middle of the week? Not only do you move the transaction from the busiest banking day of the week but on a practical level it would mean that, if anything does go wrong, there are two or three working days to deal with it. Supposing the roof of your new house leaks? Would it be easier to find a roofer on a weekday rather than a Saturday also it could save you money, quite often removal men are cheaper in the middle of the week as well, as there is less pressure on them.
So, a word of caution to us all, double check bank account details not only with your solicitor but anyone new you haven’t dealt with before. A simple telephone call could save a whole lot of heartache – let’s turn the tables on the scammers and ‘hack them off!’
© Jennifer Margrave Solicitors LLP
May 2016
We all know that there can be a ‘love-hate’ relationship between family members, particularly siblings. Mum or dad sometimes have to knock our heads together and reminds us that ‘blood is thicker than water’ to which we retaliate with ‘you can choose your friends….’ but what happens when our folks have died and we are left to work things out for ourselves?
Most people I talk to know the strengths and weaknesses of their brother or sister so when dealing with the estate of their dearly departed parent can divide up the tasks if they are executors. One may deal with the paperwork whilst the other cleans out the fridge, cancels the milk and starts getting things organised for the charity shop. Most parents treat their children equally when dealing with the money side of things but one common element that delays estates and causes bad feeling between siblings is chattels.
Chattels are all your bits and bobs of personal belongings which can be as valuable as your most exquisite diamond ring or have as little worth as a broken saucer and includes art work, cars, pieces of furniture and the family photo album to name but a few. Even the contents of the garden shed are included in the definition.
I am sure many of us have memories of certain items in our parents’ house which we loved when we were children and still admire, even as an adult, because of their sentimental association. When it comes to dividing up these chattels, we choose these items, to remind us of those happy family times and want to pass them down to our own children in years to come BUT… what happens if more than one member of the family wants the same item?
Firstly, when dealing with the administration of an estate all the chattels should be valued for Inheritance Tax purposes. That at least gives an indication as to whether something is valuable or not, with most often the general household goods such as the kitchen equipment and clothes etc being of no little or no real value, in this country.
The second point is to see if any instruction was given in the will itself or reference was made to a separate note setting out the deceased’s wishes for any particular item to be left to a certain person. If is it not set out in the will itself, and it is just in a note, it is not legally binding on the executors to follow that instruction but following the wishes of the deceased as far as possible should be paramount.
If there is no note then it will be down to the executors to decide what happens to the chattels. This is where delays and problems can arise for siblings who are executors when they cannot agree. Ultimately the administration of the estate will be delayed and funds not passed over whilst these issues are resolved and it is down to us lawyers to act as ‘parent’ and try to ‘bang your heads together’.
Emotions run high and bad feeling can arise but ultimately a decision will need to be made. We have in the past suggested that the ‘toss a coin’ method is used, whereby one sibling goes first and then the next chooses in rotation. On other occasions the eldest goes first. This does not always work as I have heard of a case of a pocket watch being taken by one sibling and the chain for it being taken by another rendering it pretty useless and a great deal less valuable.
So…what can we do to help stop this before it starts?
It is sensible to talk to the children and find out if they have any specific wishes and tell the children what you intend to do about this.
Then the testators should leave a chattels note detailing who gets what. I am not talking about who you leave your best bed or second best bed to but who should get your engagement ring, the work of art, grandfather clock, medals and family items. It makes life much easier if the children have something specific to start with.
And don’t forget it doesn’t just have to be items to leave to the children, it can be to grandchildren, other family members and friends or even a collection you wish to have donated to a museum or church.
Next time you are polishing the silver or rinsing your best china give it some thought.
© Jennifer Margrave Solicitors LLP
March 2016
No, I’m not talking about the Sunday joint; I want to talk about joint bank accounts. Most people understand the concept; two or more people set up a bank account, and both have equal right over the money in the account.
Such accounts are easy to set up, apart from the normal frustrations of providing identity documents, with the people who want to operate the account visiting a branch or filling in forms online, signing the forms and awaiting the cheque books or cards that will operate the account. I hope most people read the small print when setting up such an account because it will quite often make the point that both parties have an equal right to the sums in the account, without needing the permission of the other, and this will apply if one of the account holders dies.
Of course this situation is common with husbands and wives and helps the surviving spouse to continue to pay bills and access funds but what if the account was set up by an elderly parent with one of a number of children, for ease of management? Did the parent intend that the one child could inherit all the monies in the account, by ‘survivorship’ as it is called, to the detriment of the other children?
And if the estate is large enough to pay tax, are these funds going to be included in the estate for inheritance tax purposes, even though the executors have no control over the account?
There are various answers to these questions and several cases have tried to determine the answer but the general result is that it depends on the facts. Was anything agreed, either verbally or in writing, about the nature of the account? In addition, it depends on who injects funds into that account and how the funds were used.
One case was decided very simply; all the initial monies were supplied by the mother, her pension and other income went into the account, and the child operated the account on behalf of the mother, paying all her bills. Thus it could be seen that, although this was a joint account, and the bank would treat it as such, for inheritance and tax law on death, the account belonged to the mother.
Alternatively, if the mother had written a note to say that she had added the child to a savings account that neither of them touched, with the intention that it would provide the child with a nest egg, perhaps to pay inheritance tax, then there would be what is called ‘a presumption of advancement’ and all the money would belong to the child.
There is a halfway house; where, by the way the account is used, it is accepted that each person owns half each of the funds in the account.
The Revenue now ask detailed questions about joint accounts, such as the date they were set up, who injected funds, and how the account holders believe the account is held, i.e 50:50 or differently. If an account is held by a spouse, then, if the spouse is the main beneficiary the answers won’t make a difference, but if someone else inherits the joint account, even though by survivorship, tax may still have to be paid on the balance going to the survivor. And it is surprising how often the Revenue are aware of such accounts, even when beneficiaries don’t mention them, believing they are nothing to do with the estate, and then the administration can be delayed.
© Jennifer Margrave Solicitors LLP
March 2016
I was recently involved in preparing a complicated will for a client who first instructed me to make a will dividing their residuary estate between family and charity, with the larger part going to charity, but owing to the size of the estate there would be inheritance tax to pay.
There was a further complexity which I will simply describe as ‘The Benham Rules’. What does this mean?
Most people know that, if they leave their estate to charity, then there is an exemption – no tax to pay on the gift to charity. In addition, if that gift is ten per cent or more of the net value of the estate, then the taxable balance is taxed at a lower rate of 36%. But how do you work out what the taxable beneficiaries will get – after all the tax is paid from their share? Most people would like their family and the charities to get the same, and this means that the tax to be paid is ‘added’ to their shares for it to be taken away as tax – and this involves a grossing up calculation that is so complicated that the Revenue themselves usually send the figures to a technical department to work out.
This takes time and means the distribution of the assets in the estate is delayed.
So, what to do for my client to ensure that their wishes were carried out without such problems – and a few more besides. There was a conflict as they wanted to avoid paying tax but still wanted the will to give away their estate in the way described.
Now, it has been well publicised that family members who have, in effect, been disinherited, can make a claim through the courts for ‘maintenance’ from the estate, again involving delays and, of course, extra legal costs. How to avoid this?
There are three important actions that can be taken:
The first is to leave evidence of regular contact with the charities named in the will, either by making regular contributions or by volunteering for that charity.
The second is to leave a note explaining why the will has been drafted in the way it has; either by explaining about a dispute in the family, or by stressing the connection with the charity.
But there is a third, and very important, way of preventing claims in wills. Remember that any claim will involve different lawyers and even innocent beneficiaries who have nothing to do with the claim may have to be separately represented. Such costs are normally paid from the estate so that all lose financially. So, I recommend leaving a reasonable sum, and this will depend on the size of the estate, and the nature of the ‘non beneficiary’ to that beneficiary but then, in the will, write that if any beneficiary should make a claim against the estate, their share in the estate would be used to pay all legal costs. This would mean that the legacy would in effect be lost and most disgruntled claimants would accept the legacy rather than risking it by going to court to claim more.
And what about my client? Well, after four drafts, we achieved what they wanted; to make sure the family received large legacies, hopefully avoiding claims, with the charities benefiting from the greater part, without any inheritance tax being paid – just to show that even in the most complicated matters, simplicity and clarity is achievable.
© Jennifer Margrave Solicitors LLP
February 2016
Everyone is urged to make a will but are surprised at the charges made, when all they see at the end of the day is a few pages of typed gobbledygook. Is that all it is?
Yes, that piece of paper is the end result, but such a will is only created after the will maker is given the opportunity to consider the surrounding circumstances.
Its not just about how to gift your assets – whatever they be – to your chosen loved ones, there are far more implications to think about.
What about your funeral? Do you have particular wishes? Some people are happy to leave the arrangements to their families but others, perhaps for religious reasons, want to give detailed instructions. We wouldn’t necessarily include all the details in a will as the will could be seen by the general public, but might refer to instructions you have left.
And who would be the best people to look at what you own, and decide how your assets are going to be dealt with? Sell or transfer? Are your loved ones financially sophisticated enough to deal with your investments? How will they decide which assets will have to be sold to pay any tax? So the appointment of executors needs to be thought about.
And then there are the beneficiaries. Are they old enough to inherit? Sensible enough? Do they have special needs which means they’ll need help to deal with large sums of money? Are there family dynamics that need to be thought about, such as sibling rivalry or one child needing more help in life than another?
These are just a few of the matters that we discuss with clients to ascertain the most suitable way to draft a will for them.
In addition, there may be assets that can be dealt with ‘outside’ the will or set up in certain ways that mean less tax will be paid and that needs some thought.
Some sophisticated clients come to us already having set up inheritance tax savings schemes but haven’t appreciated all the complexities of those schemes, and how they might affect the family.
Many clients are surprised when they come in to discuss what they think is a simple will and we spend over an hour discussing their individual circumstances. And I haven’t even mentioned discussing lasting powers of attorney, which many think about at the same time as making their will.
And at the end of the process, they receive ‘a few pages of gobbledygook’. To coin a phrase, ‘you’ll know it’s worth it’.
© Jennifer Margrave Solicitors LLP
October 2015
Extra inheritance tax exemption for children?
We have been asked by numerous clients about the new proposals announced in the Summer Budget 2015 to introduce a residence nil rate band (we’ll call it ‘RNRB’) of £175,000.00 if your house is given to your children. But how is it going to work? Who is included in the definition of ‘children’ – and when is it coming in? Should you change your will now?
The first point to note is that the government has said legislation will be introduced in the Summer Finance Bill 2015 and will not come into effect until 2016 – and then, only the first tranche of an extra £100,000.00 to be added to the existing £325,000.00 nil rate band.
Then the amount will be increased annually until we reach the £175,000.00 by 2020-2021.
It should be stressed that the extra exemption only relates to the deceased’s interest in a residential property, which has been their residence at some point and is included in their estate, is left to one or more direct descendants on death. A direct descendent will be a child (including a step-child, adopted child or foster child) of the deceased and their lineal descendants.
There is a sting in the tail: The RNRB will be tapered away where the net value of the estate is above £2m.
Should anyone be doing anything now?
Our first piece of advice is to stop and think and don’t let the tax tail wag the dog. You, the testator, won’t be paying the inheritance tax anyway; it will be your beneficiaries. And it is more important to make sure those you love and want to benefit obtain your bounty rather than create artificial gifts to children when there might be others you want to benefit. The government has made the assumption that all parents want to ensure their children or direct descendants inherit, but this is not always the case and, if there are good reasons for leaving your estate to others, then do so after seeking advice and while those beneficiaries may not get as much as you would wish, they will still get most of your estate.
It seems to be forgotten that inheritance tax, at present, is not paid on the first £325,000.00 of an estate and is then taxed at 40% of what is above that £325,000.00 so, unless your estate is in the millions, the ‘tax rate’ is likely to be in the region of 32% - the beneficiaries get nearly 70% of the estate. And if the estate is worth millions then millions will still go to the beneficiaries.
Most will leave their estates to their spouses when they die and with the transferable nil rate band on the second death that surviving spouse can leave £650,000.00 of their assets tax free provided no lifetime gifts have been made in the 7 years prior to death.
Interestingly legislation in the Finance Bill 2016 will provide that where part of the RNRB might be lost because the deceased has downsized to a less valuable residence or had ceased to own a residence on or after 8 July 2015 part will still be available provided the deceased left that smaller residence or assets of equivalent value to direct descendants.
The government have said they need to consult regarding the way in which the new exemption will work in these situations. Already we can see difficulties. Imagine this scenario: an elderly widow owns a house worth £850,000.00 and decides to leave it to her grandchildren who are still struggling to get on the housing ladder. She makes a specific gift in her will, leaving the remaining cash and other assets, to her children. Most of her investments are in tax free wrappers such as ISAs.
Unfortunately, the shock of the solicitor’s bill makes her keel over and she breaks her hip and this leads to a nursing home admittance. The children, who step in to help, sell the home and start using the proceeds to pay for her care, not keeping any records. She survives for ten years and most of the house proceeds are used up but she still has her ISAs because she paid no tax on the growth and income.
Who will get the estate? How will the family work out what, if anything of the sale proceeds go to the children? Will this cause a family rift?
Or what about the elderly aunt, who, with no direct descendants, has always been involved in her siblings’ families and wants her nieces and nephews to be able to take advantage of the new exemption? The simple answer to that is that she can’t.
There are other points that we won’t go into now but remember what we said – don’t let the tax tail wag the dog. If you really want to give your house to your children, as part of your testamentary wishes, then consider making a will with a specific clause in it but be careful of the consequences.
And watch this space as we’ll update as more information becomes available.
© Jennifer Margrave Solicitors LLP
September 2015
You may find this hard to believe but a house can be stolen. All the features which ought to deter the opportunist crook are there: it’s bulky, it’s firmly attached to the ground and it certainly won’t fit into a swag bag, but take your eye off it for a while and fraudsters could target your property and get away scot free.
So how do they do it? Well of course they can’t physically tow your house away but they can steal its value and you need to be vigilant, particularly if you fall into one of the categories which is at the highest risk.
The danger of fraud can arise in a number of circumstances: obviously if your identity is stolen, the criminal can impersonate you to get access to all your property. You are also at risk if you rent out your property, if you live overseas or your house is empty, perhaps because you have gone into a nursing home. The risk is higher if your property isn’t mortgaged and higher still if it is not actually registered at the Land Registry.
The Land Registry’s job is to register land and guarantee the title to land. After completing a purchase, a solicitor applies to the Land Registry to change the register so that it shows the name of the new owner and the new owner’s address. The solicitor sends a copy of this to the client who files it away and, in all likelihood, forgets all about it.
The most common scam is for a fraudster to pose as the owner of the property either by forging a transfer document or by impersonating the registered owner. Then it is a relatively simple matter for the criminal to mortgage the property, pocket the money raised on the mortgage and disappear into the sunset leaving the real owner to pick up the pieces.
The Land Registry is committed to fighting property fraud and has come up with some measures to help us protect our property. They estimate that since September 2009 they have prevented frauds on over 160 applications representing properties valued in excess of £70m.
The first thing to do is check your Land Registry entries and make sure that the address you have given for yourself as registered proprietor of the property is current and appropriate. If you own a rented flat and you have only registered the address of the flat as your contact address, you are offering an open goal to the fraudster. All notifications connected with the property (including mortgage application papers) will go directly to the property and you will know nothing about them until it is too late. The same applies if, for any reason, you have to leave your home unoccupied. Make sure that the Land Registry has an up-to-date contact address for you: you can register up to three addresses including an email address or an address abroad.
The Land Registry now offers a facility to track changes to the register by signing up for property alerts which will be triggered if someone applies to change the register of your property, for instance by trying to use your property to get a mortgage (https://propertyalertlandregistry.gov.uk).
This won’t stop the changes being made but it will alert you when something changes so that you can take action. You can get alerts for up to ten properties - and there’s no fee.
For most people, their home is also their biggest asset. It makes sense to take a few simple precautions to keep it safe.
© Jennifer Margrave Solicitors LLP
August 2015
Whilst stuck in the morning Guildford traffic I listen to the radio. Usually I hear the news or traffic updates along with a bit of trashy gossip and music but occasionally they raise questions of interest. The most recent of which being ‘What song you would have played at your funeral?’
A silly question, you might think, but talking about appropriate music can help to raise that awkward question with relatives as to what type of funeral they would like. I think we would all like to be able to participate in our own funerals and hear those loving words from those who are near and dear to us but obviously this is not going to be possible. What we can do though is make our wishes known so we can feel reassured that when the inevitable does happen….hopefully way off in the future…we will have something suitable.
One person on the radio said that her uncle, nearing his death, arranged a big family get together before he died with relatives coming from far and wide that helped him celebrate his life whist he could be there to enjoy it and see how dearly he was loved. This was of comfort to his family when a few months later he died.
When preparing wills for clients I often ask about funeral wishes and it is clear that many have not given this much thought. I can understand why but why? It’s not morbid to think about these things and as the saying goes there are only two things you can guarantee in life. Many people include details of whether they wish to be buried or cremated which is the first big decision to be made. Although funeral wishes included in wills are not legally binding they are a guide for your family. A letter of wishes setting out what you would like is very helpful and can cover whether you wish for a religious service or not, where your ashes should be scattered or interred, it can include details of readings, favourite poems, songs etc.
It could be an uplifting experience for all the family to talk about the event.
© Joanne Mason, Jennifer Margrave Solicitors LLP
August 2015
When I find the odd moment to relax and watch something on the box I usually find myself watching some medical emergency programme. As I sympathise with both the patient and their families I find my mind drifts to the questions I raise each day with clients. What will happen if something sudden and unexpected should happen to you or one of your loved ones?
There have been several cases recently of young, healthy men dying suddenly – Sir David Frost’s son, Miles, for instance, who died in July at the early age of thirty-one, and we often hear tragic stories of loved ones taken much too soon. Some of those when they have a young family. It’s difficult enough to think of the emotional struggle for those family members left behind but there is something you can do to make life a little less stressful…make a will.
Many a time I hear from people ‘I don’t need a will’ or ‘I don’t have anything to leave’. Some are worried that signing a will means they are signing their death certificate and the grim reaper will be waiting for them outside the office (I must confess I felt a little that way myself when I first signed my own will!). Death has serious implications for anyone especially those who are unmarried and/or with children under 18 or dependents who may not only be your children but could be that elderly parent or relative you are caring for who would be lost without you. What will happen to them if you die?
For those of you who may be entitled to death-in-service benefits if you die whilst working, have you given serious thought to what you would want to happen to that money? Have you checked that your wishes are up to date since you have married or little ones have come along?
Those with young children also need to think about guardians; those people who will bring them up, in the event of both parents dying. Also who do you trust to look after the money they will inherit when they reach 18? Do you really want your children to inherit at 18? Will they be responsible enough to use it wisely and avoid those ‘friends’ who are only interested in helping them spend their inheritance or holidays and going out?
These are some of the matters that need to be considered and discussed when making a will and we can play a key role in asking those questions and guiding you to the right answers for you.
© Joanne Mason, Jennifer Margrave Solicitors LLP
August 2015
Role reversal and how to cope with it
There is a time when a child realises that the role of parent and child is reversing and that as much as you still need mum and dad they also need you. This can occur when the adult child is also looking after their own children – sandwiched between two generations who make huge demands on their time.
How to cope? And how do the children – or indeed anyone who has to step in – know what the older person wants? Do they want to live in their own home or would like to enter a nursing home? Do they want to be given invasive treatment? And, if they cannot make decisions for themselves, who is going to authorise dental, optical or medical treatment which requires consent? If a person can’t make decisions, who is going to liaise with social services or the NHS about the care that person needs?
It helps immensely if the older generation can think about helping their children and a responsible parent will put documents in place to assist their children, if necessary, to take over the reins.
Although many older folk are concerned about losing mental capacity and what will happen to them, they often don’t speak to their children about this fear. That might be a starting point; talking about the future and telling the children what their wishes are if the time should come when they can’t express those wishes themselves.
And the next step is to put paperwork in place to give children – or, indeed, other relatives if there are no children or professionals- the power to make those decisions. When it comes to making decisions about possible future health and wellbeing they should think about preparing a health and welfare Lasting Power of Attorney.
This document covers many types of decisions, apart from those listed above, including where and who they live with; day-to-day care including diet and dress; consenting to or refusing medical examinations and treatment; and having the right to access your personal information such as health and social care records and making a complaint about your care or treatment.
Having discussions about these matters and putting a Health and Welfare LPA in place helps both generations. If the parent is unable to make decisions for themselves children can find it incredibly difficult to know what mum or dad would want in the situation they are in but if you have talked about it they can feel reassured that they are making the decision you would make if you were able to do so yourself.
The key is support, advice and forward planning and most of all to talk.
© Joanne Mason, Jennifer Margrave Solicitors LLP
August 2015
I’ve written before about lasting powers of attorney, (LPAs) which were introduced on 1 October 2007 and, since then there have been several changes to the form that has to be used, but more changes came into effect on 1 July 2015.
A power of attorney is a legal document where a person gives another person or persons (the attorney(s)) authority to make specified decisions on his or her behalf. You can, for instance, prepare a one-page power of attorney under the Powers of Attorney Act 1971 which simply gives a person authority to act on your behalf and you give them details on how you wish them to act. However, the attorney’s power will end if you become unable to make decisions because of physical inability such as a stroke or a coma following an accident or you lose capacity.
If you want your attorneys to continue to act for you in relation to your finances and/or your health and welfare decisions you will need to complete a lasting power of attorney.
There are two types of Lasting Power of Attorney:
- Property and Affairs – this allows your attorney(s) to deal with your property and finances such as paying your bills and moving your money around. The financial LPA can be used both when you have capacity to act (provided you are happy for your attorneys to assist you) as well as if you lack mental capacity to make a financial decision, provided it has been registered with the Office of the Public Guardian.
- Health and Welfare - allows your attorney to make health and wellbeing decisions on your behalf but only when you lack mental capacity to do so yourself. This covers very extensive matters such as where you might wish to be cared for, what you like to eat, or your religious beliefs but the most important matter is that it could also extend, if you wish, to medical treatment including the giving or refusing of consent to life sustaining treatment.
The forms have been around 12 pages but on 1 July 2015 new forms were introduced. Don’t despair if you already have an LPA or are in the process of completing or registering one started before 1 July 2015. Provided the person giving the LPA (the donor) has signed the document before 1 January 2016 the old version is still capable of being valid even if it has not been registered with the Office of the Public Guardian.
The major changes with the new forms are as follows:-
- Instead of having continuation sheets where there are more than two attorneys, the forms have incorporated spaces to allow for up to four attorneys and two replacement attorneys within the forms.
- Rules used to require you to notify a person or persons that you had completed the form or have two certificate providers but this is no longer required.
- The new form also incorporates the registration form which is useful as most people register their LPAs as soon as they sign them so that they are ready to use if there is an emergency.
Although the new forms are longer don’t be daunted by them, they are supposed to be user friendly. Useful guidance and the actual forms themselves can be accessed on the gov.uk website. There are still certain decisions that need to be carefully thought about when preparing an LPA aside from ensuring that you choose suitable attorneys to act for you.
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
July 2015
‘Can I make my will before I go on holiday?’
That’s a common question we get in the next few months – and when we ask when the client is going, it is usually in a few days’ time. Of course we can accommodate the request but we always feel as if we can’t give enough consideration to the client’s situation, especially if we have to discuss tax planning.
There is another problem which we all have to overcome as well and that is the legal requirements that are imposed on us before we can take on a new client. When I first came into the law I worked with a wonderful gentleman who wore a bowler hat (not in the office of course), a three-piece suit that was enlivened with a gold watch and chain hung across his chest; and he would welcome new clients by shaking hands and giving them a sherry.
The world has changed and we certainly don’t offer sherry as many of our clients drive to us! Instead of the friendly handshake, we have to go through various statutory steps in order to satisfy ourselves of the identity of a new client – that is why you have to produce photographic evidence and evidence of your address and, in addition, we have to make sure you know the details of the contract between us before we can do any work. That is why we give you terms of business and ask you to sign one copy. All that can take time.
In addition, when we see you to make a will, it is not just the paper document that you sign that we concentrate on; we need to make sure you have taken on board all the family responsibilities that you may have; there may be tax-planning implications and we discuss the wisdom of the executors you may specify. In addition, if you still have infant children, we advise about guardians of those children. Sometimes our initial meeting raises questions which need further consideration so, although a paper document can be produced fairly speedily with today’s technology, it is the advice and guidance that takes time.
So, going on holiday in August? Make an appointment sooner than later…..
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
May 2015
You want to make a will and you believe you’ve thought of everything – the foreign property, the grandchildren and even what would happen in a global accident. In fact, we try to help clients by providing a questionnaire that makes them think about such matters before they come to make their wills. But recently I realized that we’ve forgotten a ‘dear’ member of most people’s testamentary wishes – the family pet.
What happens to Tammy the cat or Bonzo the dog, or even your noble horse or donkey when you are no longer there to care for them? Apparently most people, according to a recent survey, assume that the executors of their will have the responsibility and will care for them – but will they? And how?
The same survey says that an average dog or cat – not even thinking about larger animals – costs an average of £17,000 during their lifetime, covering food, inoculations and vets’ fees.
I’m not suggesting that, like some testators have done in the past, the house and garden be left to the pet, which is not possible anyway, as animals cannot inherit money or property, but who would be responsible for ensuring the pet is cared for?
In the first instance, if a will is made, it would be the executors, but a will can give specific instructions as to how pets are dealt with. Years ago, a dear client asked me to be her executor and I was happy to do the job, until she told me what she wanted included in the will for her dog. It was specified that, on her demise, the dog should be put to sleep by a specific vet. I protested, as I did not want to be responsible for a healthy dog being put down unnecessarily, but she then explained that the dog was over ten years’ old and would probably not survive her anyway. In a way, although it was sad, I was relieved when she phoned to tell me the dog had passed away during her lifetime and she assured me she would not get another pet.
Although a specific legacy cannot be left to animals, a direction can be made for the executors to reserve a certain sum to pay for the care of the animal and can also specify how that care can be carried out. Quite often a companion dog walker will be specified – but ask them first – and leave them a legacy to thank them for their kindness in taking the dog.
Quite often charities will take healthy animals but again it is only courteous to leave them a legacy in appreciation of them taking the animal.
And if the estimated cost is really £17,000 then leaving a legacy of £500 will not really be helpful.
I am certainly going to change my firm’s questionnaire for clients to think about their pets in future.
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
April 2015
When I was young someone who was hacking had a nasty cough, which sounded as if they had sawdust in their chest, and could be serious. With a bit of tender care, the person usually recovered but with today’s hacking, it can be a serious threat to a person’s life savings.
Hacking is when another person manages to ‘get into’ your or someone else’s computer by breaching security arrangements and then sending out rogue emails. Even lawyers are not immune to this. Indeed, we are constantly warned that solicitors, especially those who handle large sums of clients’ money, usually relating to the sale and purchase of properties, are particularly vulnerable. Hackers are increasingly targeting a Friday afternoon as well – when most solicitors are dreaming of their weekend. But it now seems that our clients are the new targets for these hackers.
Two members of my firm recently attended a compliance conference (yes, I can hear you yawning already but it is a necessity these days sadly) and one very worrying incident reported to them was where a client’s email was hacked prior to completion on a sale. The solicitor and client had been corresponding through email and details of the solicitors’ client account where monies were to be sent prior to the completion had been sent to the client. The hackers had accessed the client’s email, cloned the solicitor’s email template and sent a new email under the guise of the acting solicitors to advise the unsuspecting client of a new bank account the money should be sent to. Sadly the client had no reason to suspect anything wrong, and duly sent the money to this bogus account.
As you are all aware if you do online banking we are constantly reminded not to give out any confidential account details or PIN numbers over the phone; we are all potentially an ‘easy target’ it seems. Hackers seem always to be one step ahead so be alert; check the email addresses of your emails very carefully and if there is just one full stop, or hash, that is different, do not carry out the instructions in that email.
Any uncertainties then please give us or the ‘sender’ a call just to put your mind at ease.
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
St Valentine and his arrows....
Whilst watching yet another live public marriage proposal on breakfast television on the lead up to Valentine’s Day this year and being torn between cringing with embarrassment and a flood of emotion at their happiness my mind turned to whether the blissfully newly engaged loved-up couple would give any thought to their wills when planning their magical day.
I am sure that their demise will be the last thing they think about whilst organising the venue, the dress/outfits, flowers and the dream destination honeymoon for afterwards. They, like many others, will probably not have wills, I’m sure, and don’t even think they are necessary. If they do have wills they are probably not aware that getting married automatically invalidates their wills. That means if they don’t update it, they might as well have no will at all and will die intestate.
We mainly deal with mature clients and their marriage might be a second or third one and they may have made wills some years before, forgetting about them in the euphoria of their new-found love but the same revocation of that will applies on remarriage. This might not have the effect they intended, especially if the new spouse has agreed to honour wishes to make sure children from the first marriage will inherit, because, on intestacy, the surviving spouse will probably take all the estate.
So, as part of the marriage plans, it is worthwhile taking a few hours out to organise wills, which can be made in advance of the big day in contemplation of their pending nuptials, before they get too bogged down chasing up replies to invitations and trying to keep everyone happy with the table plan.
The same will apply to the flood of newlyweds that have entered into or are planning same-sex marriages this year. I am pretty sure that Stephen Fry will have given thought to his will before his recent marriage but many won’t.
So, if you are planning on getting wed (or know someone who is) give some thought to putting a little time aside to prepare wills and get them signed and filed away in advance so you can relax with that glass of champagne when you depart on that jet plane without needing to give it a further thought……for now.
© Joanne Mason, Jennifer Margrave Solicitors LLP
As a lawyer the above phrases are part of my ‘bread and butter’ and I assume everyone knows what they mean, and the difference between them. I was talking to a charity officer recently who explained that she did not know why some people left a legacy and others left the charity the residue.
That made me think, because I am aware that experts – not only solicitors, but doctors, accountants and especially IT experts- have their own language. It is not intended to confuse the general public, I hope, but for that specialist to be precise in their own field, but of course it does confuse. When an IT expert tells me ‘all you have to do is…’ followed by acronyms such as ‘ISPs’ ‘macros’ or ‘IT address’ my brain blanks out, and I don’t even know if these phrases are correct.
So, an explanation of the words ‘legacy’ and ‘residue’ will be made. Of course, both words relate to gifts in wills, and those gifts don’t come into effect until the will-maker has died (I was going to use the word testator instead of will-maker, but that’s another technical term.)
A legacy is a certain defined sum given to a specific person and can be used to ensure the gift is a definite amount, usually of smaller sums, but when including legacies, a person has to ensure there will be sufficient monies to cover that legacy and payment of ‘liabilities’ such as funeral expenses, income tax and inheritance tax if the estate is large. If a number of legacies exceed the size of the estate, such debts are paid first and then the legacies are reduced proportionately.
Normally a legacy is paid without inheritance tax being paid from it, so the sum specified is what the recipient, the legatee, receives, but it can be specified that the appropriate tax is deducted from the legacy, so that other beneficiaries’ shares are not reduced by the payment of the inheritance tax. This would not apply to gifts to charities because charities are exempt from inheritance tax.
The residue means literally, the rest. So, once the executors have paid the funeral and other expenses, and the legacies, and pay the administration expenses, they can pay what is left to the named beneficiaries.
In an inheritance tax planning exercise, some people decide to leave the nil rate band amount to their taxable beneficiaries, i.e family or friends, and the balance, which would be taxed, to charities. In this way no inheritance tax would be paid, but it does mean that, in a large estate, more than £325,000 (or £650,000 if it is the second spouse to die) the charities might receive more than the family.
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
I recently wrote about the way experts confuse ordinary people with ‘techno-speak’ but something even more sinister is happening; the way technology is leaving some people behind. And it’s not just the elderly or frail. I reckon I’m reasonably sophisticated –no comments please – but recently I was turned into a panicked, quivering jelly by modern technology.
Imagine a town car park where I had driven to visit a local theatre. It was 7.30 on a windy. and wet evening. I encouraged my spouse to get out of the car and pay the cash fee for our parking, but he returned to tell me that he couldn’t get the money in, as it appeared to be blocked. Peering at the instructions, I discovered that we could pay by payphone so I dialed the number and, guess what, got through to a recorded message.
In the meantime the church bells started ringing – a lovely sound but truly intrusive, so I could hardly hear whether I needed to press; one, two, or three, and was that a hash or a star at the end? And that was the problem; how do you hold a phone in one hand, an umbrella in the other, to protect from the driving rain and try to see the tiny button that allows the numbers to be revealed so you can press them? And how do you press them when you are holding the phone with one hand and an umbrella with the other? Since breaking a thumb and a wrist, I don’t have mobility in my hands to use a thumb to press buttons while holding a mobile. Normally, I have to hold the phone with one hand, and press with the other hand.
I guessed what needed to be done and hey ho, I did something right, but then I was told to register, by filling in my name and address and decide on a password.
Password? I knew that was my downfall. I’m quite good at making up passwords that satisfy the need for being secret. Create a difficult one, with numbers, letters, symbols and other requirements, but the problem was that, once registered, I could never remember them. I know we should never write them down, but a remote car park was not a suitable place to write down a password anyway. It was not good.
I gave up, found an old-fashioned piece of paper and a pen and wrote: MACHINE BROKEN SO COULDN’T PAY, put it in my dashboard and left to enjoy our theatre visit. When we returned three hours later, all was Ok, no parking ticket!
I’ve since discovered that this remote system of paying for parking is going to become even more familiar, because of vandalism to pay and display car parks, because thieves target the cash machines. So what to do? Let’s go back to the idea of technology, which seems to rule the world, and give those IT guys a mandate; produce a system that is disability friendly.
After all, we are the humans and technology should be designed and created to help us; not made so we have to adapt to mechanism.
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
Funding for care – the scare stories and a silver lining….
Many older people are scared about how they are going to pay for their care if they become very frail or ill. Stories about people having to sell their homes to pay for their care are common and there is a fear that Social Services refuse to fund until the level of capital has reduced to a ridiculous level. It is true that Surrey County Council Social Services – the local authority responsible for funding care won’t fund unless a person’s capital has gone below £23,250. Even then a person will have to contribute their income to pay for their care.
But it is not known that medical care – whether in a nursing home, care home, or even in your own home - is the responsibility not of Social Services but of the National Health Service. And it is not means tested. If a person has a primary health care need then the NHS must pay for their care, without taking into account that person’s finances.
The trick is in the words primary health care need; the NHS have strict budgetary constraints to stick to so have to be careful with their money and it is often the case that it is not pointed out that a person may be eligible.
The law was confirmed in a 1999 case involving a paraplegic lady called Pamela Coughlan, when the Courts confirmed that the NHS was responsible for paying for her care.
The nursing staff and doctors in hospital are busy and don’t always have the time to tell families that this is a possibility and are pushing for discharge to free up hospital beds. There are horror stories of a person not getting NHS continuing care funding unless they are being fed with a Peg (a device to feed a person through their stomach) or have very serious nursing needs because, for instance, they exhibit very aggressive behaviour. But this is not necessarily the case.
The NHS award the funding after carrying out a series of assessments based on 12 needs, including behaviour, cognition, skin viability and nutrition. Each need – or ‘domain’ – has several categories from ‘low’ to ‘high’ and some needs have higher categories of ‘severe’ and ‘priority’. It depends on the score in each of the domains as to whether a person is awarded the funding. Our firm has the nursing expertise to investigate a person’s medical records, care home records and other relevant information to mount a serious case for many people to obtain NHS funding.
We have successfully appealed against decisions not to award NHS funding on behalf of several clients which has meant, in the majority of cases, a significant repayment of care fees backdated to when the patients first started to receive nursing care.We have also been successful in claiming a refund of care fees after patients have died.
Most of our clients come to us after trying to claim such funding themselves and not being successful because they do not have the weaponry to fight the professional assessors that the NHS employ – we will talk to new clients to work out what they want to achieve and we will offer a fixed fee service to let them know whether it is worth pursuing a claim for NHS continuing care funding.
All it takes is a phone call to our offices.
How to get the best out of your solicitor
Seeing a solicitor is like going to the dentist – frightening because you don’t know what to expect AND how much it is going to cost.
Is that true? It ain’t necessarily so, as the song goes – mainly because the Solicitors’ governing body, the Solicitors Regulation Authority now expect all lawyers to give an estimate of the fees at the beginning – and if you look at my website www.jennifermargrave.co.uk you will see that, as far as possible, we work with fixed fees so you know what to expect.
But if the job is not within our fixed fee range, how can you keep the costs down? Most solicitors charge by the time spent on a matter, the argument being that the more experienced solicitor will not need to spend so much time researching the law or preparing complicated letters of advice, so you will see that I am ‘charged out’ at a higher rate than my assistant solicitors. When you meet with us we will firstly talk about the level of expertise that is required for your matter and allocate the right person for the job but you will always see a solicitor or a fully qualified legal executive.
We will work with you to try to achieve a level of fees that is acceptable to you and the way we do this is to discuss with you what you can do to help. If, for instance, you are an executor of a will you can collate the paperwork, we can obtain probate for you and you can then deal with collecting in the assets.
Or if you need to deal with a family situation that involves legal work, we will discuss with you at the beginning of the matter what you can do and what we will do. For instance, we don’t need to collect papers if you already have them but be prepared to hand them over to us when you come.
Try to keep interviews short by preparing a written note of what you think your problem is and make sure you bring all relevant documents with you. For instance, if there is a problem regarding your house, it is always sensible to produce your deeds. Remember that we have probably heard your story before, so try to keep to the bare facts and let us ask relevant questions to get the fuller picture.
Most people know it is now a legal requirement that we verify identification with an up to date document with your photograph on it and a utility account of not less than three months’ old so make sure you bring that with you.
At the first meeting we will outline how we will work with you and what you can do to help us – if you need to obtain records from some other body we might prepare a form of authority for you but it could save time if you arranged for the records to be obtained.
You will see that our logo is ‘we advise on law but do much, much more.’ That is largely true. A lot of what we do is administrative but necessary and behind the scenes, but still has to be charged for. The rules we are governed by require us to ‘know our client’ so we have to record basic information about you in a confidential way but also in a way that can be accessed in the future and this all takes time. In addition many clients come back time and again and we already have records so do not have to waste time having basic information repeated, so in the long run, that administrative work saves time.
When we meet with you we will try to give you a time table when we could expect to process the matter and we try to stick to that time but you can save costs by ensuring you also keep us informed – quite often costs increase because we have to chase!
We like our clients – and enjoy working with them so (with apologies to dentists) it’s not like going to the dentist – we work with you to get the best out of us.
© Jennifer Margrave
Who would you approach to deal with the administration of an estate? Solicitors have traditionally been the people who deal with probates and most families would expect to see a solicitor about this work, even though some feel they are expensive, longwinded and take forever to wind up the estate.
However, it is now a truism that there are several ways to deal with the estate of a person – so why use a solicitor?
Firstly let’s look at what might happen. When a person dies the first action is to register the death, and the registrar might give you some helpful leaflets, which invite you to call a freephone number (is there anything free in life?); then when you visit the funeral director, he may too give you a leaflet with another freephone number to ring.
However, the savvy family know a thing or two and decide, well, why use anyone? Do it yourself and save lots of money. Yes, that might be fine if it is a simple estate with a few bank accounts and a house leaving all to surviving wife or husband. But what if there are shares? Family arguments? A complicated will? Inheritance tax to pay? So a decision must be made about who to consult, especially at a time when you are deeply upset and perhaps not thinking straight.
You have that leaflet with the freephone number so you think it’s a good idea to take advantage of it. You are then visited by a person who tells you that solicitors take months and charge thousands. You believe them. They ask you to sign forms and give them all the information and off they go. One of the forms they ask you to sign, perhaps, is a power of attorney so you need not do any more signing; all will be dealt with in-house.
How long will you have to wait to hear from them again? It should be, according to their own literature, a few months. Is it? I have been hearing stories that it is not. I have also been hearing stories of high fees, and inefficiencies.
I do not know whether these stories are true or not but what I do know is how solicitors deal with probates especially in our firm. Firstly, we take between eight and ten weeks to obtain probate, if there are no complexities and sometimes less. Often, we then hand the probate to the family executors to collect in the assets; why do we need to do this if it is all passing to a widow or widower? We talk about our fees at the beginning and discuss with the family how those fees can be kept to a minimum if the family are concerned about that.
Sometimes a probate might take longer but we tell you why; it might be because of a company not replying to letters, or additional assets being found. But we will tell you this and, if you are concerned, you can pop into our office and discuss your worries with any member of the team. We are here for you, locally.
And we try to wind up an estate as soon as possible because we understand that this helps the grieving process.
So before trying that freephone number, or even after meeting with others, speak to us and give us a chance for you to compare the service you will receive.
‘There’s no need to make a will now that we get that double nil rate band, is there?’
That’s the sort of comment I’ve been hearing from couples for some time now but ‘it ain’t necessarily so’ as the song goes. In this area, with houses still worth £500,000 or more, and with some savings, it is still useful to consider a will. The tax planning wills that used to be prepared, before the Government changed the law, included a discretionary trust which meant that the family had flexibility on the first death. The surviving spouse or civil partner was protected but some of the family assets could also be ring-fenced for the children.
Although it is not necessary to carry out this ring-fencing on the first death for inheritance tax purposes, such discretionary trusts are useful in certain family situations, where the testator is worried about beneficiaries not being able to use the money wisely.
In addition if a person is a beneficiary of a discretionary trust – such as the surviving spouse or civil partner - if they needed care, only their assets are taken into account, not those in the discretionary trust. I have often found that many couples who buy their council houses often find they have to sell them to pay for their care.
I have also heard the common misunderstanding that ‘all will pass to my spouse when I die anyway....’ which again is not necessarily true, as there are statutory limits to what a spouse receives, depending on whether there are children or not. And what happens if you die together?
3 out of 5 people die without making a will with unintended consequences, and many make home made wills which often have inconsistencies or mistakes in them which can be expensive for a lawyer to sort out. It is not just sufficient to say ‘All to mother’ – which is an actual case, when the husband always referred to his wife as ‘mother’. And what does ‘I leave all my money to...’ Is it the coins in your pocket, the money in your bank account, or your investments in Premium Bonds or other savings?
Quite often such inconsistencies can be corrected after someone has died if the family act within two years of death but only if all are adult and can agree.
It is even more important for couples who are not married to make wills; especially with young children – to appoint guardians at the very least. If guardians are not appointed then quite often Social Services will become involved and children be put into care when there might be a family member or appointed close friend who is willing to take on the children.
And if you’re going on holiday and haven’t made a will my team will be able to prepare a simple will within a few days....
So review your situation now.
© Jennifer C Margrave
THE NEW LASTING POWERS OF ATTORNEY
If you knew about lasting powers of attorney which were introduced in 2007 and were put off by the length and complexity of the form, then you may be pleased to hear that new forms are being introduced on 1 October which are much simpler to do.
Most people prepare such forms in order to make sure they choose the people who will be able to act for them if they cannot. There used to be a four page user-friendly document called an enduring power of attorney but this could no longer be created after 30 September 2007 (although if you had prepared one before that date they could be used later). Then the Mental Capacity Act 2005 introduced a new document called a lasting power of attorney which was some 25 pages long, but anybody completing it was required to read accompanying notes of some 26 pages long. It has now been admitted that it was so badly drafted, that even so-called experts found they were ‘getting it wrong’ with consequent problems of nobody being able to act for a person who might well have become, in the meantime, incapacitated. Even if one box had not been ticked the form would be rejected by the Court of Protection and the only recourse then was either to prepare a new form or to go through the expensive procedure of applying for a deputy to be appointed.
Because the forms were perceived to be so difficult to complete, and expensive, many people are using other methods of helping their elderly relatives with their finances. For instance, many banks were encouraging clients to add relatives (or friends) to their bank accounts or allow them signing powers under mandates. This gives no protection if the person added is unscrupulous as they could withdraw all the funds quite legally. Another way of dealing with the problem is to encourage people to use a general power of attorney, which, strictly, would lapse if the donor became mentally incapable but the general feeling was ‘who would know anyway?’
At least the Office of Public Guardian, the official body responsible for people who lack capacity, has heeded the pleas for change, and undergone a process of consultation with interested parties, and agreed a new form, which is to launch on 1 October. In this respect, Solicitors for the Elderly, of which I am a member, took part in the extensive consultation myself and other colleagues being involved in meetings when there were many discussions which sometimes became rather heated! This, I believe, showed the dedication of SFE members to ‘getting it right’ for our elderly clients, who were often the group of people trying to wrestle with these documents.
Now that hard work has crystallised into new documents - there are two, one for Property and financial affairs and the other for health and welfare – the process should be simpler and cheaper. These documents are much shorter and easier to complete although it is still important to take independent advice before completing them. After all you are giving someone power of your affairs at a later time when you will not be able to act, and there are still court rules that need to be complied with.
For instance, on the front page there is a warning: ‘This lasting power of attorney could be rejected at registration if it contains any errors!’ So independent advice from someone familiar with the forms will help to make sure you get it right.
Once completed, the forms will still need to be registered as before and cannot be used until they are so registered.
The Court of Protection have given people a time of grace so that they can still use the old forms up until the end of March 2011. The reason for this is that you might have had the document signed by the person who wanted to make the power of attorney but the attorneys have not yet signed the documents. So the forms can be used, but because they are 25 pages long and the new forms are considerably shorter, I suspect that most people will want to use the new forms.
I confirm that if you have made an Enduring Power of Attorney you do not have to make another document.
© Jennifer C Margrave
You may have read in the press that the government has opened up legal services so that non solicitors can give legal advice.
I have no problem with this. After all, if you are sick you can decide to use your grandmother’s sure fire recipes such as honey and lemon to cure a common cold, or go to the chemist for a pharmacist’s recommendation, or, if you are really worried, go see a doctor. The doctor may recommend you to a specialist, if the symptoms persist.
Many solicitors are worried about the way in which the government have opened up legal services but the law can be both simple and complex, and it seems to me that the same analogy can be applied to the law as it can to medicine or any other discipline. For instance, some people feel comfortable about decorating their own houses; others use the experts; most of us are comfortable with changing a fuse but would not want to re-wire a house.
But in all things, if you want to use the services of others who claim to be experts, you should make sure that those claiming to be specialists really are what they claim to be. How do you do that?
I started this article by asking what is Tesco law? That is the phrase that the popular press has coined and it implies mass production, availability and access for all – and any company providing legal services would claim quality as well. But how do they achieve this and how do you, the consumer, know that their claims are justified?
Many companies providing legal services may have an in house training programme in the particular law that they are going to provide, whether it be conveyancing, will making or contract law. Who provides that training? Well, it is going to be law lecturers, or lawyers. And how do they maintain the quality to a mass market? Usually by doing volume work in a mass produced way to keep the costs down. This may work well when it is a ‘simple’ will or a ‘simple’ sale and purchase of a property but who decides what is simple? It is not until a full investigation has taken place that the legal aspects of these transactions can be assessed as to their simplicity or complexity and then the service appropriate to that transaction given and only a well trained person can make a full and proper assessment.
I asked above how you can know that the claims of service providers are justified. I can only say go by personal recommendation or the fact that a person belongs to a respected trade association. For instance, Surrey Trading Standards runs a quality control system which means they check out organisations before they can be listed.
And, it should be appreciated, that before a solicitor is allowed to practice, they have to undertake at least six years study, with four years academic setting and two years working with other lawyers under a training contract. In addition they are governed by the law itself as to how they can practice, charge, and have a very full and detailed code of conduct which they have to comply with and, if they don’t, they can be struck off. There is a compensation scheme so that if a person suffers loss, the whole profession is responsible for paying into that scheme to pay out appropriate compensation.
So, before you consider ‘Tesco law’, make sure that your adviser, at the very least, belongs to a body which governs how they work. For instance, I belong to The Law Society; find out to whom you can complain, and, if you do complain, that there is some compensation if you have suffered loss. For instance, if you seek advice from my firm, I will give you detailed terms of business setting out all this information.
© Jennifer C Margrave
Published letter to the Surrey Advertiser regarding elderly population statistics
Dear Sir
There are statistics and the sensible interpretation of statistics; can I take issue with the scare-mongering article on page 5 of this week’s Surrey Advertiser? (2 July 2010).
It states that by 2030 nearly 1 in 5 of Surrey’s population are likely to be over 65 and therefore there will a greater demand for services.
If you look at this in context, 4 out of 5 of the population will be under 65 – looks different then doesn’t it?
There is also the implication that all those over 65 will become a huge burden on the rest of society, but what is forgotten is that ‘65’ is the new ‘50’ – and that is one reason why the government is proposing to increase the statutory retirement age. We are all living longer but many of us are also living healthier lives so that instead of being a burden on society, those over 65 are quite often making a very valuable contribution to society by being volunteers, carers of both older relatives and grandchildren, and also working part-time.
I work with many elderly people and it is true that some have health problems but that is not necessarily caused by the aging process itself. In addition, other statistics will show that the average length of stay in nursing homes is decreasing which is in implication that less people need complex nursing care for less time before they die.
I agree that, as a person ages – which can be at 70 or 90 or any age between or after, they may require help from others and this help should be made freely available (either nursing or daily living care), because those who reach that grand age have paid taxes all their lives so their contribution should be recognised by accepting responsibility for them. But do not put the fear of the cost of such by saying ‘Almost a fifth of the population.....’ because it is not true to say that that proportion will be costing society an inordinate amount of society’s resources.
© Jennifer C Margrave
Financial abuse and what to do about it
Do you know a neighbour who is isolated but is visited by strangers on a regular basis? If challenged, they may claim to be carrying out building or gardening work, but there is no evidence of this. Could this be financial abuse?
Or have you seen someone in your bank or building society being led to the counter and assisted to take out large sums of cash? This might be financial abuse as well.
In my job we see quite a few cases such as this and it is always difficult to prevent it, especially if the older person is suffering from short term memory loss so can’t remember what they have done. Quite often the person being abused does not recognise it as such, being grateful for the care they are being given and wanting to reward the carer.
So what can you do about this? Ignore it? Or try to stop it? If you are concerned about somebody you could contact Social Services who have a vulnerable adult team and a process that could involve the police. If you do not want to contact Social Services, you could contact the Charity, Action on Elder Abuse, whose advisers are trained to assist. Their telephone number is 020 8835 9280.
Another port of call, if you believe rogue traders are ‘working’ on a neighbour, is to contact Trading Standards. You will see the ‘Buy with Confidence’ mark on my advert and this is because the Trading Standards in Surrey (a County Council organisation) has vetted the way in which I work (see previous article in an earlier Burpham Pages) but Trading Standards officers are also involved in investigating when tradesmen might be abusing their position by charging vulnerable people too much (which of course should not happen if the tradesmen has a ‘Buy with Confidence’ accreditation). If the trading standards cannot prosecute under contract law, they might report the matter to the county council’s social services team to visit the older person and see if they can help.
There is now a dedicated police team to investigate financial abuse but they are often hampered by the lack of evidence because the older person is not able to give a witness statement.
With the information above, it should be possible to notify one of the agencies, such as trading standards – if it is a tradesman – or the police or social services, or get advice from the charity
© Jennifer Margrave
ABS – what does it mean to you?
If you’re a car person, it could be the anti-lock breaking system on your car; if you’re a keep fit enthusiast, it could be your abs – the muscles in your arms – and, if you’re a chemical wizard, it could stand for acrylonitrile butadiene styrene, a common plastic. But there’s going to be another definition after October this year, when alternative business structures come into being, and it means that solicitors – who traditionally practice together – can run their businesses with other professionals.
What does this mean to you, the client? Firstly, you might be confronted by a sales person in a stationers or a supermarket fronting a franchised firm of solicitors asking if you have made a will or have had a personal injury where you might get compensation.
Many big firms are hoping that merchant banks or private equity firms will invest in them so that they can market their products to the public. Other companies such as the funeral directors and banks are setting up legal departments to carry out work such as probate which was traditionally only done by solicitors.
Many lawyers though have expressed the worry that, if you have non lawyers who share in the fees made, those non lawyers will prejudice the way in which the lawyer gives advice.
All solicitors have to give independent and confidential advice and act in the best interests of their clients; but with the need to make a profit for investors, extra pressure may be put on them to only accept the most profitable work, or their fees will increase.
But there will still be the smaller firms like my practice, where we pride ourselves on the fact that most of our clients come to us because of the expertise and skills we display in giving advice and assisting many with their legal problems. We try not to be gimmicky or work with others who might prejudice the way we can give independent advice, although we also try to keep up to date by using such tools as Twitter and Facebook to keep our clients informed of what we are doing.
So how do you differentiate between these new ‘giants’ and the ‘minnows’? The only way is to ask around – and we find that our clients are pleased to recommend us because they have been pleased with the service we provide. I repeat, ask around – and think about what you want from lawyers; do you want a remote service, using far distant call centres or do you want to be able to pop into your local solicitors’ office and have a quick chat with an approachable and friendly person? Many people prefer the anonymity of a large firm while others need the comfort of face to face contact.
Also ask about fees – we have heard that large companies have been telling people that solicitors’ fees are excessive and very high – especially in the probate field – whereas this is not necessarily the case. I repeat it again; ask around and find out before signing any paperwork.
So, I suggest that ABS can mean to you – put the brakes on before you sign a contract with any person offering legal services; use your ‘abs’ to pick up the phone and ask around – and make sure the chemistry between you and the lawyer, whoever you choose, is right for you
© Jennifer Margrave, Jennifer Margrave Solicitors LLP June 2011
I was given a pair of socks by a client which had printed on them ‘Trust me, I’m a solicitor’. Another friend gave me a coaster with the Shakespearean quote, ‘First, we’ll kill all the lawyers.’
(I hope they are being ironic, but that’s another story….)
So, why do we have to ask people to ‘trust us?’ and why kill the lawyers first? A recent survey commissioned by the Legal Services Consumer Panel claims that solicitors fall below doctors and teachers as trustworthy members of society.
I was surprised by another statistic as a result of the same survey, that 47% of the population, i.e. less than half, trusted their solicitor to tell the truth.
However, the survey results also show that, of those whose solicitors had completed the work, 84% were satisfied or very satisfied with the outcome of that legal work. And 56% considered they had got value for money.
So is this a case of the bogeyman in the cupboard who you don’t know – and if you open the cupboard and face the fear, it’s not as bad as it seems?
Perhaps there’s an historical reason for the facts – not quite going back to Shakespearean times.
Traditionally only the wealthy dealt with lawyers for property matters – and before the Second World War it was not unknown for solicitors to render their bills once a year. This was because only those who came from a moneyed background could afford to become solicitors in the first place. Many ‘articled clerks’ would pay for the privilege of following their principal around, learning the ropes as they lunched or dined with clients from the same background.
Another historical point is that a large number of people did not buy their houses before the Second World War, preferring to rent, so few people had contact with solicitors. The boom in house ownership took place in the late fifties and sixties, just as the legal world was opening up to ‘ordinary’ applicants.
By the sixties, grammar school children were coming into the law – many, like myself, from a working class background. This means that now, most lawyers are, I hope, understanding of all types of people from all sorts of backgrounds. A large part of the misunderstanding between lawyer and client is usually lack of communication; well, that is going now.
The Solicitors Regulation Authority (‘SRA’) is introducing a new system of overseeing solicitors in October, called ‘outcomes focussed’ which means, simply, if a client is happy then the SRA won’t interfere.
So, it is a requirement of our governing body that we must communicate with the client, explaining how we charge before the matter starts, for instance, and agree with you, the client, how we are going to work with you, giving you time limits, etc. Most lawyers will welcome you and be approachable, happy to develop a good relationship to build on for the future. And if they are not, find one who is….
© Jennifer Margrave, Jennifer Margrave Solicitors LLP
Do you believe in giving to charity? The Government, trying to encourage us all to do so, is introducing a new relief from April 6 whereby if person leaves 10% or more of their estate in their will to a charity then less inheritance tax will be payable.
At the moment estates are taxed, very simply, at 40% over the ‘nil rate band’ of £325,000.
But after April the 40% tax is reduced to 36% if 10% of the relevant estate is given to charity.
Sounds great doesn’t it? Does it mean that you will be able to leave more to your children or others? The tax won’t apply when estates pass to spouses because they are tax exempt anyway (so there is no point in trying to save tax); let us have a look at what it means.
First what is a person’s estate for IHT purposes? This can be complex because it may include property in trusts or assets which a person thought they had given away but the gift is not ‘perfect’ – called a gift with reservation of benefit. So, before making a will giving 10% to charity it is best to seek professional advice just to work out what the 10% is.
And how do you work out the 10% even when you know what your estate is? One point is that you do not know the size your estate will be the day you die; you may have to go into a care home and your house, usually your main asset, may have to be sold to pay for your care.
And will it mean you are able to leave more to your non charitable beneficiaries? Let us look at some examples.
Mr John Smith has a £5 million pound Estate (lucky him!). His wife died 15 years ago and his house is worth half the Estate and he lives on the remaining income.
When he dies he can use the two nil rate bands of £325,000 (being his own and his wife’s unused NRB) so his taxable Estate will then be £4,350,000 which will be taxed at 40% which means £1,740,000. This is a lot of money to give to HMRC.
What options does Mr Smith have? He could give away money to his children and grandchildren and if he lives for a further 7 years this money would be exempt from inheritance tax as it would count as a potentially exempt transfer.
However, if Mr Smith was altruistic and wanted to give money to charity, he could give £500,000 (being 10%) to a charity and then his taxable estate would be reduced to £4,500,000. He could then still use the two nil rate bands worth £650,000 and that would leave £3,850,000 to be taxed at 36% (as he has given 10% i.e. £500,000 to charity) and then the IHT will be £1,386,000 which saves £354,000 from the jaws of the taxman! But it should be appreciated that his family are not going to benefit because 10% of his estate has gone to charity.
If we consider an example of a more common estate valued at £850,000 now and from 6 April 2012:-
Now 6 April 2012
Estate worth £850,000 £850,000
Less charitable legacy of £ 52,500
Less the available nrb £325,000 £325,000
The net estate for 10% £525,000
Less minimum charitable legacy to pass 10% test £ 52,500
£472,500 £472,500
@ 40% £189,000 @ 36% £170,100
So, the amount left for distribution to non-charitable beneficiaries (i.e. the estate value less any charitable legacy and IHT due) would be £608,500 now and £627,400 from 6 April 2012.
If there had been no charitable legacy the amount available for beneficiaries would be £640,000 (the estate less IHT due which is £210,000). The charitable legacy results in a reduction in the amount left to other beneficiaries of £31,500 now and £12,600 post 6 April 2012.
So, do you want to benefit charity and pay less tax? Then the new scheme will be for you – if you want to make sure your beneficiaries get most of your estate, then the 10% reduced tax will not be useful.
©Jennifer Margrave for Jennifer Margrave Solicitors LLP
February 2012
Your property is probably the most valuable asset you own – how safe is it from fraud? If you are living in it, then there is little chance that you will have a problem, but what about those houses that are empty, perhaps because the elderly owner has gone into a care home, or lives abroad for many months of the year?
Most properties are registered now, although we do come across those which are unregistered still, especially where the owner has lived in the property for many years, or inherited it from relatives. In those cases, if the deeds – sometimes a large bundle of interesting documents, are lost, then it will be very difficult to prove ownership.
A few years’ ago the Land Registry became ‘paperless’ and, instead of producing a large document, with an impressive red seal on it, called a Land Certificate, with all the relevant information sewn inside, they record everything electronically and all that is issued are ‘office copies’.
Applications to change the ownership of a property can be done without production of any formal documents, except a special form that has to be signed by the owner or owners and witnessed. Admittedly, the person applying for a change either has to produce identification documents or their legal representative has to confirm that they have verified the identification of the people carrying out the transaction – i.e. the person transferring the property and the person to whom it is being transferred.
Sounds easy doesn’t it? Too easy perhaps. Many lawyers were concerned about the fact that ‘deeds’ were no longer held by the owner as proof of their ownership and their worries have been proved by a recent case headlined in some of the tabloids.
Collusion between a Land Registry employee, a bank manager and a solicitor meant that many empty houses were transferred to them and then sold unbeknown to the true owners. Sometimes the owners were in a nursing home, in one case an elderly lady had been burgled some years before, and felt she could no longer live in her home so moved to live with relatives.
How easy would it be, for instance, for a tenant to produce identification – a council tax bill for instance, to show that they lived in the property?
The Land Registry have now taken on board that empty properties are at risk of being ‘taken over’ by unscrupulous criminals and, whilst there is a compensation scheme when things go wrong, they have issued guidance for owners to protect their property.
So, if you have an empty property in your family, either because a relative is abroad, or it is a buy-to-let, or there is a breakdown in a relationship and the property is waiting to be sold, then follow these guidelines
- Register the property if it is not registered. If there is fraud the Land Registry has a compensation scheme;
- Check the contact details – you can register a separate address to the property address. In fact you can have up to three separate addresses or even an address abroad. This way the Land Registry has more chance of contacting the true owner;
- If you feel there is a risk with a property, for instance, it is likely to be empty for some time and you cannot keep visiting because you live too far away, then it is possible for the Land Registry to put what is called a restriction on their records designed to prevent dealings by requiring any conveyancer to certify that they are satisfied that the person selling or mortgaging the property is the true owner.
From February this year, owners who do not live in a property can register this restriction free of charge at the Land Registry; owner occupiers will have to pay but it is designed to protect those who do not live in a property.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
You believe you have full control over your house and can do what you like with it – so when you hear all the hype about solar panels you investigate, decide it is a good idea and sign an agreement for a company to install them on your roof under a ‘rent a roof’ scheme, not thinking to get appropriate legal advice. After all, the representative was a lovely man and explained that you would get free electricity.
Did you know that such an arrangement may run for up to 25 years without a break clause and that you may discourage potential buyers and possibly create structural problems for your property by having them installed? The contract may require you to get consent to sell your house or to make any alterations or additions to the building near the solar panels. If the panels are removed for a period to maintain the roof you will may have to compensate the company for the missed feed in tariff payments. If you sell the property within the 25 years the contract will remain with the house and you will need to find a purchaser willing to take on the lease…would you buy a house with a roof that was being rented out? It has been reported that some banks and building societies are refusing to provide mortgages for houses with such’ rent a roof’ schemes attached to it.
I stress that the problem arises with the type of agreement where you have granted space to the company, so if you buy the solar panels they are yours and can be sold along with the rest of the house.
So what is the problem with sewers? Last year the ownership of private sewers, that run under peoples’ property, gardens or in the road, and connect to the public sewer system, moved from the homeowner to the water companies. The good news is that if there is a collapsed or blocked sewer the water company will need to repair it at their expense. You will still be responsible for the sections of pipe between your property and the transferred private sewer or lateral drain. But it should be noted that where a sewer is located within a property boundary consent or a ‘build over agreement’ will now be required from the water company before building over or in the vicinity of the sewer.
These are just two of the many regulations that affect householders – there are many more, relating to electricity, heating and windows. Perhaps it is time to carry out a ‘regulations health check’ on the title to your property to ensure all is in order – but at the least, if you are considering any renovations or extensions, it is worth taking legal advice before doing so, and not just rely on the installer or builder.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
How Jennifer Margrave Solicitors LLP work with you the client...
Solicitors administer the law, don’t they? They traditionally prepare legal documents, advise how those documents work and interpret the law for their clients.
But our slogan is ‘we advise law but do much, much more….’ So what does that mean? A lot of our work is not necessarily ‘legal’ and by that I don’t mean it’s illegal as such – just that it’s not within the traditional sphere of what people think lawyers do.
There is the giant idea behind ‘advising’ clients – which is a little more than interpreting legal documents. On many occasions an elderly person, for instance, cannot make up their mind to downsize or enter into an equity release scheme; we can outline the pros and cons but also tailor the advice given and then work that advice through with the client to help them to come to what will be the right decision for them.
And then there is the negotiating between family members when someone dies. In the past we have had disputes about who is going to organise the funeral – the ex-wife, the current wife, the children or, in some cases, the current mistress. Okay that might be a scandalous exaggeration but it demonstrates one problem that can arise. It is not only the legal implications of the situation that we have to deal with but we also try to steer a middle course to ensure a potential dispute does not explode into full scale litigation. For instance, there can be arguments about chattels and, in many cases nowadays, whether one of the beneficiaries is going to stay in the family home so that the other beneficiaries have to wait for their share of the proceeds when it is sold. These are family problems which, quite often, cannot be resolved without the help of an outsider – ‘a counsellor’ for want of a better word.
But because the firm of Jennifer Margrave LLP is designed to advise the elderly, our staff do so much more; in the past we have purchased underwear for clients who have no-one else to do it, taken a client to Wisley in their wheelchair for a day out, and even in one glorious case, taken a client with dementia to a nursing home in Switzerland near her children.
And, on the other hand, we can be put at great risk to ourselves from our clients who are suffering from dementia and can sometimes be, without meaning it, quite aggressive. One of my clients, distressed at not getting my attention because I was talking to her sister, threw a banana at me, hitting me in the face…All in the day’s work…..
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
I’ve talked about funding nursing care in the past but before the final move is made there is an even more important step that needs to be taken. How safe is the roof over your head when living in a nursing home?
In the last few years many nursing homes have closed – the worst case was the chain called Southern Cross in 2011 when the company went bankrupt and many residents had to move – fast. Remember that, for many people, this is the final step, and the family home is sold to pay for the care, so there’s no going back. What will happen if it turns out the care home is unsuitable, or closes?
The very first step is to enter the home on a trial basis – this can be as long as three months, before making the final decision.
Before making that final step, though, make enquiries to ensure the home is not under pressure and may close, and we can help you do that. Many homes are run under a limited company which has to file reports at Companies House and a search can be made to discover whether the company is profitable or has filed its last accounts. If they haven’t this might be an indication that they are not doing too well. Another way of investigation is to make a Land Registry search to see if the nursing home owns the building or if it is held on a lease. If it is on a lease, then will they be able to pay the rent and would the landlord want the building back at some stage if the rent is not being paid? Find out if the nursing home has a mortgage as well.
Is the home full or does it have social services placements? Social services negotiate hard to keep their costs down, especially in these recessionary times, so that many homes rely on private funders for their profits. Is the home one of a chain, so that if one home closes, you might be able to be accommodated in one of the other homes?
Look at the home carefully; is it newly painted, with good carpets and everything spick and span? Are there lots of friendly staff about or it is quiet, except for the blaring of a television in the lounge. Good homes have activities staff and there is a ‘buzz’ about them, with reception staff and managers who will be available and not so harassed that they are unavailable when you want to speak with them. It is always a good idea to visit a prospective home at different times, without an appointment.
Sometimes it is a good idea, if there are no close relatives to help, to have a social services assessment so that the care manager from social services can help if there is an emergency. Most older people who go into care homes go reluctantly because of health issues and may be too frail to ‘fight their own corner’ – social services are obliged to take on a case if such a person is considered to be a ‘vulnerable adult’.
Finally it is vital to have a contract and care plan which has been discussed with the family and the person entering the home. The contract should include provision for notice on both sides – with some sort of leeway on fees if a resident dies suddenly or goes into hospital for a long time.
You wouldn’t buy a house without making due enquiries and entering a nursing home is very like buying the next home you are going to live in so it is vital to make sure the move is going to be as secure and happy as it can be. With the above steps, it should be.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
May 2013
Thinking about babies in wills
Congratulations to Kate and William on the birth of their son but as a lawyer, my first thought was, have they thought about their wills, now they have a family?
Apparently there is going to be a baby boom this year – Boris Johnson claiming it was caused by the excitement of the Olympics last year. But what do new parents have to consider once the euphoria – and the first few hard weeks have worn off? The first thing is guardians – if a ‘global accident’ occurs and both parents die, then the children could well come under the control of the local authority social services. Even if there are willing aunts and uncles or grandparents who can take the children in, social services could place the children with foster parents and assess the situation and this could take some months.
Indeed, in the case of the two children of the Iranian husband and wife who were shot in France it has taken nearly a year for social services to assess the situation – albeit an unusual one – and it has finally been agreed that a maternal aunt can now permanently look after the two little girls.
Of course, being in such an illustrious family this may not happen to young Prince George but strictly speaking it should.
The second thing to think about is how the child will be cared for and that care paid for financially. Should new parents think about setting up special insurance policies to cover care, or make provision in their wills for a trust to be created? Children cannot inherit money until they are eighteen in any event – so that trustees can look after the money wisely until they inherit.
If there is no will, the children would still inherit but there would be no-one to administer the estate so it is vital to consider the executors who can be responsible enough to invest the money wisely so the children inherit a good pot when they most need it.
It is not a good idea to appoint the same people as guardians and executors because their roles are slightly different.
Thirdly, when they make their wills, they should think about whether any more children come along – it is not a good idea just to name Prince George as their beneficiary and then find that more children come along, the will is forgotten about and the other children are then left out of the will, so a will can be drafted in such a way that future children who are born can be included in the bounty.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
What do you own on the Internet?
So you’ve purchased all your favourite music from iTunes and are happily ignoring all around you as you travel, immersed in your own world. You would like to leave your music to your children who, you are sure, would get as much joy from it as you have, so you consider leaving a specific legacy in your will to transfer the file to them.
That’s fine – or is it? Do you own the iTunes library so that it is ‘a chattel’ and able to be given away or don’t you?
iTunes is owned by Apple and Apple has 56-pages of terms and conditions which of course you have ticked that you agree to, probably not reading it all. You want to listen to your music so you don’t have time to read the small print. Who does? You ticked that agreement because it says: THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR USE OF THE ITUNES STORE, MAC APP STORE, APP STORE, AND IBOOKSTORE SERVICES ("SERVICES"). TO AGREE TO THESE TERMS, CLICK "AGREE." IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "AGREE," AND DO NOT USE THE SERVICES.’
In other words, you are hauled over a barrel – you can’t negotiate the terms. I’m not going to repeat those terms but another clause states:- ‘Apple is the provider of the iTunes Service, which permits you to purchase or rent digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.’ Notice that phrase, ‘end user only’ – so you cannot pass on the music store. An explanation given is that when you buy a book you own the actual hard copy but only the right to read it but not the actual material and it is the same with the music.
So you might give your digital machine away that holds all the music but strictly you can’t bequeath the content. If therefore the machine is wiped clean then all the music would have to be paid for again.
What about social network sites? Can your next of kin take them over when you die and continue to post information – perhaps about your funeral or your artistic works which may have a life of their own?
The Facebook site states that you own all the content and information you post on Facebook, and you can control how it is shared through your privacy and applications settings.
In addition its licensing clause states, "You agree that the Service, including but not limited to Products, graphics, user interface, audio clips, video clips [and] editorial content ... contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright.” This again implies that the Facebook account cannot be bequeathed like other assets. If someone dies and Facebook are notified they will usually close the account down.
But remember that, if you delete an account or it is closed, anything that has been shared with others will still be there, so it would be very difficult to truly delete a record.
Lawyers are still struggling with how these ‘assets’ can be dealt with on death and not least of the problem when clients have on-line bank accounts and investments, where passwords are usually hidden away, because we are warned not to let anyone know them.
One suggestion we are making is that, certainly with investments, a paper record should be kept of all accounts, account numbers, and the methods by which those accounts can be accessed by executors. This can be kept in a sealed envelope, signed by the testator and the person who is storing it, to be passed to the executors on death. But remember to keep it up to date with new passwords!
Quite often there is an address that is the ‘home’ of the on-line bank account where the death certificate and probate can be sent but it can be difficult to find that address, where everything is dealt with online. If there is not – and this would be very rare – then the passwords are invaluable.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
Solicitors’ fees are astronomical, aren’t they? And you never know how much they’re going to be…
Yes, I’ve heard this many times and I agree with the second statement – as one client said to me many years’ ago, if you go to the supermarket you know exactly how much a tin of baked beans costs; so why can’t we know how much our solicitor’s bill is going to be?
There is a straight answer to that; the manufacturer of the baked beans knows exactly how many baked beans there are in the tin and how much it cost to purchase the raw beans, the tomatoes and other ingredients and how much it cost to bake them – and the cost of the tin.
Taking that analogy, how can a solicitor work out how much it costs to provide the ‘service’ of legal advice – sometimes with no ‘hard copy’ such as a will or other legal document to show for it. Some solicitors work in large offices in the middle of town – others, like my firm, work in small friendly offices in the centre of the urban district we service – obviously the cost of the larger offices is going to be more. Some solicitors’ firms work with qualified staff and other legal advisers use ‘paralegals’ who may specialise in one field and not have a broad experience in all aspects of the law.
Having been rebuked by my ‘baked beans’ purchaser, many years ago we worked out how much it cost to prepare a will or other documents and we came up with our fixed fee regime which you can see on our website. But it is notoriously difficult to give costs for the administration of an estate – they are as different as humans are different. Yes, there may be a house and a bank account, there may be executors or it may be an intestacy, but even mentioning these aspects of an estate ignores the type of house or bank account, and the way other organisations deal with us.
Now we know that other advisers – such as the Co-operative legal services and banks have worked out percentage fees depending on the assets in the estate or the value of the estate – and sometimes taking into account both the number of assets, number of beneficiaries and the value of the estate to reach a conglomerate figure.
Solicitors, under our code of conduct, can charge a value element but we often discuss how this works with clients and how it works and sometimes do not charge it so the fees are usually calculated on the amount of work done.
Remember it is a very vulnerable time for the family when a loved one dies and, even if you would normally question how you were going to be charged for a service, you do not query the costs of the administration of the estate. For instance, very few people question the charges made by funeral directors, do they? It is not felt ‘right’ to do so.
Our advice to anyone finding themselves in this situation is to take a deep breath, ask around for recommendations if you can, but don’t immediately rush into appointing someone to deal with the administration of the estate.
Once the funeral is over, you will feel more able to deal with such matters and then you can ask about charges to see if you agree them. We will always talk about charges at the beginning of a matter, even if it will be difficult to estimate because it will be based on the amount of work we do.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
I bang on about preparing powers of attorney for when you can no longer manage your affairs and it is assumed that such documents are only for those who are becoming frail through old age, but are they?
When can such documents be used in other circumstances? Let’s forget about those who go paragliding or skiing with high risks of broken arms and legs – what about the daily risk of breaking your writing arm so you can’t write out those cheques or use a keypad to access your bank account? If you had appointed an attorney that person could assist you in such circumstances.
And it doesn’t need to be a lasting power of attorney, where the form is some twelve pages or more and has to be completed with some degree of formality; it can be a one page document called a general power of attorney which is used when you still have mental capacity – i.e. if you cannot write or for some other reason cannot deal with your affairs.
What about all those youngsters who travel the world in their gap year? We can prepare a general power of attorney, which would literally last for the year, so that parents or siblings can deal with banking arrangements and send money to remote parts of the world when needed. Of course with modern day internet banking and credit cards it is much easier to deal with banking when abroad but what if there is a sudden windfall from a deceased relative where a large sum of money hits the current account – how easy is it for someone who is languishing on the beaches of Thailand to put that money on the best deposit account? If there is a general power of attorney, the attorney can deal with that in England.
And of course, if the youngsters are travelling abroad it is always a good idea for them to make a will. I have done one for a responsible teenager who bequeathed his expensive bicycle to his brother before he went to university, because his brother could make more use of it than his parents – who had their own bikes anyway! The argument might be that the youngster does not have much money, but there are always contingencies and as I say above, they may inherit large sums from deceased grandparents while they are away and this might need to be dealt with.
Disasters occur throughout the world and it is best to have the appropriate paperwork to cater for them.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
As you know I usually write about the law – whether wills, powers of attorney or care issues but I’m changing tactics – and want to talk about flowers.
Flowers give pleasure to so many people with their bright colours and scents and in Victorian times, the ‘say it with flowers’ logo literally meant that – for instance, to give blue violets meant ‘I’ll always be true’, and people understood this. We’re not going as far as that but we’ve listened to you – our clients – and we know that our shop front is boring and dull so we’ve thought of an ideal way of brightening it up – and ‘say it with flowers’.
From September there’ll be a display prepared by Flowers by Rosemary, our nearest florist, which we hope will catch the eye of you, our clients, and passersby – and we’ll be putting photos of them on our website www.jennifermargave.co.uk as well so if you don’t pass our offices you’ll have a chance to see our displays.
Each display will have a theme – connected in some way with the law – that’s the boring bit - but we like you to let us know what you think about the arrangements by tweeting us or ticking the ‘like’ button our Facebook page
And if you think our clients don’t use the internet so can’t see our website or use Facebook or Twitter, think again. We have clients in their nineties who use Skype – the free face-to-face phone service – to keep in touch with relatives who live miles away.
One of our clients who has deteriorating sight has been set up with a wonderful system where emails and other communications can be magnified many times so she can still write letters, read and see pictures of her relatives.
So if you know someone – or indeed yourself – who still hasn’t taken to computers, with all their additional complexities, websites, emails, Facebook, Twitter and many others, don’t despair about learning all about them. AgeUK Surrey has a centre where lessons can be given by patient and willing volunteers.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
A moral tale to cheer the chill of Winter
You have all seen the soaps or dramas where the serious solicitor sits at the top of a long table, the family and servants all gathered around, waiting for him to read through the will. He takes a deep breath, adjusts his pince-nez on his nose, and looks down. He read aloud, slowly and ponderously, first the fact that he and his partners are appointed as the executors; no surprise there. But those gathered express surprise when he reveals the various legacies. The lebgatees lean back and smile but then there is a pause. He has come to the ‘residuary clause’ which most of those present do not understand except that it is usually the largest part of the estate. The black sheep of the family interrupts. ‘Get on with it, man, which one of us has inherited her wealth?’
The solicitor takes another deep breath and gets to that part of the will which reads… ’all my residuary estate UPON TRUST‘; he pauses and looks over his pince-nez and surveys the company around him. When he reveals that the recently bereaved aunt has left the bulk of her estate – the large Tudor mansion in landscaped grounds, all the contents and her stocks and shares – to the butler, there is a dramatic display of dismay.
The favourite nephew jumps up and protests loudly; the quiet, mousey niece who has tended the old lady in her last illness knots and unknots her lace handkerchief, the black sheep of the family laughs sardonically. The butler stands rigid not knowing what to say.
If this is how you think solicitors deal with wills now, then I am sorry to disappoint you. In this day of computers and skyping, we do not meet with the family to read the will in this formal manner; that is for the soaps to make a dramatic scene.
The first step that a solicitor takes is to establish who the executors are – the people who are going to deal with gathering in the assets – money, houses, jewellery, and investments. The work of establishing the size of the estate could take some time and a wise executor does not inform a beneficiary of their inheritance until they have obtained the probate – the document that enables them to gather in the assets. Human nature being what it is, as soon as a person knows they are going to inherit, they start to plan how to spend the money; and if there are problems in gathering in the assets or paying debts, then there could be a delay and irate beneficiaries wanting to know when they are getting their money.
Even worse, there could be a disgruntled person who stops the executor from getting probate and then the assets will be frozen, sometimes for years.
Once however, probate is obtained, the assets are collected in, all the bills, such as the funeral account and household expenses are paid and then the beneficiaries can be paid out.
So, the next time you see a dramatic display of ‘reading the will’ – just before the butler is murdered of course – you can smile to yourself, knowing how wrong it is.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
Charity begins in our home county
I wrote a few months ago about Silverline which was a new charity set up to help the lonely by signposting them to other charities that could provide assistance, befriending or suggest activities in which they could take part.
The Surrey charity AgeUK Surrey, for instance, provides wonderful opportunities for activities – the latest idea is Men in Sheds – the first one being set up in Ash with its official opening at the end of February. This is a place where men who ‘do not get out much’ can meet others, take part in woodwork and other activities and have a cup of coffee.
If there are enough funds, AgeUK Surrey will organise other ‘sheds’ across the county.
Apart from this, AgeUK Surrey runs organised walks and walking football, as well as a befriending service, hometime, and gardening assistance.
But I want to talk about how such organisations fund the schemes they operate. The money doesn’t come like manna from heaven.
All charities have suffered in the recession, quite understandably, as everyone has had to tighten their belts. Savers have less interest from their capital; workers have not had pay rises; utility bills have rocketed.
All charities obtain their funding from the good nature of the public for their day to day work; this is most obvious on collection days when that annoying person rattles a tin in front of you in the High Street, but while this is an important source of funding, it can be the smallest. The largest amount comes from donations and legacies and these have certainly reduced. But if we accept that it is difficult to make lifetime donations, this shouldn’t affect legacies, as a person shouldn’t worry about the cost of bills and lack of deposit interest on their deaths.
Of course most people want to protect their family and ensure they pass down as much as possible to the next generation – or the younger generation who are struggling to get on the housing ladder – but giving outside the family can be good. If ten per cent or more of your estate is given to charity then any taxable estate will be charged at 36% instead of 40% - so the government give you a little ‘thank you’ for being charitable.
If the government can be so charitable, how about you?
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
It’s time we talked about …death
Unpleasant it may be, but it is inevitable and we never know when our time has come. As my firm deals with the administration of estates we are often involved in the organization of funerals and the subsequent funeral tea, but it is surprising how difficult it is to do this when there is no guidance.
Yes, the minister conducting the funeral can be helpful and so can the funeral director but this is why there are so many funerals where the hymns being sung are The Lord’s my shepherd or Abide with me.
Quite often these events have a formality about them that can provide comfort but on many occasions they are seen to be objective and not reflect the true memory of the deceased.
When we speak to clients, many of them are not bothered about what happens, apart from the wish to be either buried or cremated, with an increasing number wanting ‘woodland burials’ with the appreciation that a woodland would represent a heritage site for the future. Even so, it is not very helpful to your loved ones not to give them some hints about what you would wish for your funeral, even if it is to say that they can make the choice.
For instance, do they know who they should notify, such as your old school-friend who you meet twice a year, or the members of your bridge club or yoga class; all those acquaintances that have some significance in your life and you know that they would like to say farewell and remember you.
So even if an address book is pointed out or you tell your relatives that there is a Christmas card list they can use, or even your email addresses, this would help.
And what sort of music truly reflects you and your life? If it is Abide with me, then fine, but there are other hymns and music that you can choose, that says to those who are mourning you, this is who I was, I hope you like it too.
If you leave notes like this not only can it help those grieving – and in shock as well – but it could also prevent potential conflict; especially in today’s families of second marriages, step-children and half-brothers and sisters where there is a potential for situations to build into real resentments amongst the family members.
Having said all this it should be appreciated that wishes are that, and bizarrely, the remains of a person ‘belong’ to the executors and they can decide on the arrangements, so choosing executors is important, although most would not ignore written instructions on how a funeral should be conducted.
So, sit down, have that chat, and write it down; to save more grief at an already grieving time.
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
How we became dementia friendly
Dementia is a word that frightens most of us and although I am pleased to say that most of my elderly clients are still very much on the ball – some still playing bridge and others learning how to use the computer in their nineties – it is a fact that we see people who have some problems with their memory.
Can they make a will? Can they make decisions about legal matters?
I recently went to a dementia friendly training session and I knew the answers to those two questions because I answer them most days when I see elderly people but I was surprised at some of the other facts I was told.
What about the question, can a person with dementia decide where they can live?
There are many myths about dementia and that is why it appears frightening. For instance, if you have a family member with it, most people believe they will develop the illness as well.
And is it true that as we get older it’s normal for memory loss to be a problem?
But let me go back – what is dementia training and what is behind it? The government has set up an initiative called Ageing Well and Surrey and the Alzheimer’s Society is working together to promote understanding of dementia and encouraging businesses and individuals to become dementia friendly.
As soon as we heard about this initiative we signed up and after completing a questionnaire we are now part of the initiative called Dementia Friendly Surrey.
Although we have always acted patiently with our clients, the training has reinforced the fact that we greet people in a friendly way, and are patient and clear when we meet clients but more importantly we do not make assumptions about what a person can or cannot do until we have talked to them for a while. And if it takes more than one meeting, then that is how we act. In addition we help the carers who quite often feel lonely and need guidance.
It is possible for someone with dementia to continue to work, socialize and take part in hobbies and enjoy loving relationships. As the dementia progresses they may need support but with the right sort of friendly help they can continue to live a full and active life. So Dementia friends, such as my firm, encourage others to understand the illness, what people can and cannot do, and try to support those with dementia and their families.
Dementia friendly Surrey are also trying to promote healthy living as it is a fact that living a healthy life, eating a balanced diet and exercising regularly can help stave off the possibility of dementia.
And what are the answers to the questions I posed above?
Yes, a person with dementia can make a will; if they understand the nature of what it is, and are logical and appreciate the requirements for making a will, so that with a simple explanation from us, and patience to give them time to absorb that information, a will can be executed.
And yes, decisions can be made about legal matters, such as preparing a lasting power of attorney so that, if they cannot manage to make decisions for themselves, either with their finances or about their health and well-being, there is someone who can step into that role. They can also decide to sell the family home and move somewhere else for more support, again with an understanding of what they are told about the consequences of that legal issue. So they can decide where they want to live as well. But an early diagnosis will ensure that they can carry out these legal steps because as the disease progresses, it will become harder for them to understand the legalities and then we cannot prepare the appropriate documents.
And it is a myth that dementia is genetic, except for a very few cases where it is a particular type of dementia, but, if your parents suffered from dementia you can do something about it by living a healthy lifestyle, not smoking, eating well and exercising regularly.
Is it normal for memory loss to be a problem as we get older? Certainly not, although we can all have those senior moments when a name just won’t come to the forefront of our brains. It is only if the forgetfulness is so bad that it affects the way we do things that help should be sought. In fact, older people can capitalise on the wisdom of having lived longer than others, and have experienced most lifetime events so can make more accurate judgements than younger people.
If you want to know more about the Aging Well initiative you can either phone the dementia helpline on 0300 222 11 22 or visit the websites www.dementiafriendlysurrey.org.uk or www.surreycc.gov.uk/ageingwell
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
Going to court – or not?
When I tell people I’m a solicitor they invariably ask me what it’s like to go to court and wear a wig. Coupled with their own stories about how stupid judges are, citing a recent judgement.
When I explain that I rarely go to court, certainly not the public courts that are seen in television dramas, and have never worn a wig – not even for dressing up – they seem disappointed and I can see from their faces that they don’t think I’m a ‘real’ lawyer.
I would say that most of the solicitors I know, who deal with what is called ‘personal client’ work, do not go to court either.
So, what do we do? How do we deal in the law?
We are trained to study the law of this land, and increasingly, European law, and use our knowledge to help our clients. But that is just the backbone of what we do. The law is both complex and multifarious, with land law sometimes clashing with probate law and trust law overriding company law. So, once we have learned the statutes, the cases and regulations, we have to know which ones are relevant to our client.
I will give you an example. Many of our clients own their home with their spouses, (or civil partners) have children and want to make a will to make sure they leave their estate to their family. Quite often we are told, ‘I want to leave everything to my spouse (or civil partner) and then down to the children, but my spouse can live in the house until s(he) dies.’
Simples, as those little creatures say!
Whoa, we’re solicitors, we’re not going to make it simple. But don’t blame the complexity on the messenger, because as solicitors we’re trained to interpret the law – so it’s the lawmakers you should be complaining about when I tell you that the above scenario covers trust law, land law, probate law, inheritance tax law and some complex statutes such as one we refer to as TOLATA. (You don’t need to know!).
But solicitors go further than that, because our analytical training helps us to guide our clients in what can be quite complex problems, so it is not just about ‘the backbone’ but the flesh of counselling, supporting and guiding our clients through the maze, especially in the areas of law that make up probates, conveyancing and trusts, which make for some very stressful situations.
I always say that I’m not a true lawyer anyway, because I use the tools of the law to help my clients achieve their aims, and it may not be the law we use, but common sense and negotiating skills.
I hope that stops the question about going to court!
© Jennifer Margrave for Jennifer Margrave Solicitors LLP
A lasting and appreciative Christmas present for your family
For many people, the festive season is all about spending time with loved ones and giving presents, and seeing the joy of the recipient. In this age of consumer spending we hear many complaining that the gifts they receive are not really wanted, and we can all see the queues after Christmas when those gifts are being exchanged or refunds claimed. So, why not think outside the box and give a present that will last a lifetime.
What is it? It’s making a will, with a specialist, who can as far as possible, make sure your loved ones will benefit in the way you want. We appreciate that no one likes to think too carefully about their own demise, but ensuring your final wishes are made clear and legally recognised is the best gift. But you should ensure you visit a specialist, and solicitors are ideally placed to know about the intestacy laws and also guide you through the practicalities of drafting a will.
Thirty million adults in the UK do not have a will, many of those living in partnerships where the intestacy rules do not protect them and it could well come as a surprise that co-habiting couples who are not married or in a civil partnership will inherit nothing. Recent changes to the intestacy rules strengthened the position of married spouses and civil partners, but left the position of cohabiting couples unchanged.
Intestacy is where the state decides who inherits if someone dies without a will. Only partners who are married or in a civil partnership can inherit under the rules relating to couples.
You can return those awful socks and loud jumper to the shop and get a refund, but there’s no going back if you die without a will.
If you want to check out whether the intestacy rules give you some protection, and more details of the Law Society Wills and Inheritance Quality Scheme (WIQS), visit http://www.lawsociety.org.uk/support-services/accreditation/wills-inheritance-quality/
And if you miss Christmas, why not make it a New Year Resolution?
© Joanne Mason for Jennifer Margrave Solicitors LLP