Wills and Lasting Power of Attorney

Peter contacted us regarding his elderly, unmarried Aunt Edith, who lived in another part of the country.

He said Social Services had placed her in a care home, as she was no longer able to care for herself at home.

Peter was outraged at the apparent high handed attitude of the Local Authority as he told us he was the next of kin and couldn't understand what right the Local Authority had in interfering in her affairs. 

Gorvins explained that the Local Authority has statutory duties of care to their elderly residents. Peter rarely visited his aunt, so it was no surprise that he was out of touch with developments.

Unless his aunt had taken action, whilst she was fit and well and had made a Lasting Power of Attorney to cover the possibility that one day she might be in the situation where she couldn't manage her own affairs, then the Local Authority were safeguarding her interests and the only solution was for Peter to apply to the Court of Protection to become her Deputy.

This can take at least 6 months, during which time Peter's aunt's affairs were in a state of limbo.

Another couple, Bill and Joan, had addressed such issues, whilst they were both fit to do so. Sadly, Joan was now suffering from dementia and Bill had bowel cancer. It seemed likely that Bill might die before Joan.

Some years before, Bill & Joan had visited their solicitor and changed the way that they owned their house, instead of the survivor owning all the house after the first of them died (this is called a Joint tenancy), they now owned the house as Tenants in Common. This meant they each owned a distinct half share in the house, which instead of going outright to the survivor of them, went in accordance with their Wills, which was drawn up as part of their sensible asset preservation planning.

The Wills gave the survivor of them the right to live in the house until death or earlier if the survivor no longer permanently lived there.

Sadly Bill died before Joan, who then went into a care home. The house was sold by their two sons, who had been appointed executors of Bill's Will and the attorneys of Joan, under a Lasting Power of Attorney, which she made whilst fit and mentally capable.

What happened to the sale proceeds of the house?

Well Bill's half share passed under his will to his two sons. Joan was in care and self funding her care costs, so her sons made sure she received all the benefits she was entitled to and taking into account her State and occupational pension looked at the shortfall in her fees. They then took financial advice and purchased an annuity based on Joan's life expectancy. This annuity made up the difference in her care costs for the rest of her life.

So with good planning, half the value of the house was preserved against care costs and a large proportion of Joan's half share was also preserved, to pass onto her sons and their families on her death.

The moral of these two stories is it's never too early to take good specialist legal advice and put it into action.