When I am asked what area of law I specialise in, I have spent years trying to have a clever answer encompassing within one line precisely what I do. The usual definition is Private Client but only other lawyers will understand that term. If I say Wills, Trust and Probate I can see people’s eyes glazing over. When I mention that I handle peoples’ matters by being a Deputy or Attorney, people then think I am a financial advisor. So now if the situation is suitable, I say that I deal with death, delusion, dementia and deceit, Granted that sounds somewhat irreverent but it is an apt description of what my day and working life involves.
So how do these four “d’s” feature in my daily working life?
Death is the uniting factor that none of us can avoid but we can make provision for our family on our passing by making a Will. I hear a lot of supposed reasons for not making Wills from “I don’t have anything”, “my wife/husband will get it all anyway”, “it’s too depressing” and I still encounter people who feel that making a Will will hasten their departure from this world.
My involvement in drawing up Wills for individuals is to ensure that your hard earned assets do go to the people you love, care for and wish to benefit. If you do not make a Will, it still surprises people who actually inherit the assets, especially if you are not married to a partner. I have seen too many times the consequences of not making a Will where the person you wish to inherit is not covered by the Intestacy Rules which apply an order of who receives assets when no Will is in existence. A very common scenario is where co-habitees have adult children from previous relationships. If one of them dies and the assets are just in the sole name then all their assets will pass to their children not their partner. This could cause a very real and immediate problem to the surviving partner of losing their home and money. A Will could have changed all this and provisions could have been made both for the partner and the adult children.
It is therefore very important that when you do make a Will, consider the different needs of the various people within your family and how you can be as fair as possible when there can be competing interests. It is also the time to think about whether any of your beneficiaries need protection under a Will in which case a straight forward Trust could be involved to protect them from their own vulnerabilities. It is also important to appoint executors who will look after your wishes; you are the person who knows your family better than anyone else and therefore it should be you who is choosing who will administer and look after your estate so as to ensure that family disagreements are kept to a minimum. If you feel that no one in the family is the right person for the job then you need to consider appointing a professional, either a family solicitor or an accountant who has dealt with the family over the years who will have some insight and family knowledge but who will also be firm but fair handed should the occasion need it.
This brings me on to delusion. It is quite apparent from dealing with the Administration of Estates and obtaining probate that potential beneficiaries sometimes have higher expectations of what they will be left under a Will than the actual reality. All too frequently I am contacted by remoter family relatives enquiring as to what they might have been left under someone’s Will, quite often even when they have not seen that family member for 30 years plus.
It is therefore helpful when you are dealing with a Will or making changes to a Will, to have letters addressed to both the executors and to the beneficiaries. This can explain why someone is not included in a Will, the history of the family and if the Deceased has cut out an individual who was financially dependent on them and the reasons why. The latter is most important as there are groups of beneficiaries who can make a claim against someone’s estate if they feel that they have not been adequately provided for. If you are considering this then seeking advice is essential and a letter even more so, so that the administration of the estate can be as smooth as possible.
One of the most satisfying parts of my job is acting as a Deputy or an Attorney for those who are cruelly affected by dementia and either do not have any family or whose family members are frail and elderly themselves to help them with their financial matters. When I have been appointed as Attorney whilst they still have mental capacity then I will have known them and asked them details of how and where they would wish to live in the future, what sort of assistance they would like to be given should they lose mental capacity and how they would like their finances to be handled. It is very sad if this day does arrive, but to be able to assist a client when they do not have anyone else to stand in their shoes and look after their financial and health matters gives me a great sense of pride. Similarly if I am appointed as a Deputy by the Court of Protection, where there is no other family members available, it is again a very rewarding position to be that person’s champion. This can involve sorting out the correct residential care for them, continuing to check they are being looked after in the home, liaising with social/healthcare workers and others to make sure that they receive all the assistance and extra help they may require. It also means being financially responsible for their money and making sure and taking advice to ensure that their money will last as long as possible to keep them in their chosen home. It also means visiting them, talking with them and making sure that they have the clothes that they like and need and any other items which may provide the day to day stimulation to make their end of days care as comfortable as possible.
Sadly part of my daily legal life in dealing with people’s affairs brings me into contact with various people who have seen fit to take financial advantage of either their own family members or others. All too often I encounter people who feel that it is acceptable to use Mum or Dad’s credit card or debit card as they know the pin number to not only look after their parent’s finances but also to benefit themselves. In these circumstances I have to draw on my own diplomatic skills to point out that the position of being an attorney is one of trust and the overwhelming point is to ensure that the person who has given the power of attorney to someone is looked after, not the actual Attorney. In some cases when the parent dies adjustments do have to be made to the amount such a child receives under a Will. This is where it is vital to seek advice before entering into a Lasting Power of Attorney to make sure that you have chosen the right person from your family to be an Attorney and also that before the Attorney takes on the appointment that they understand the limitation on how they can deal with that person’s money.
So in conclusion as solicitors, we do not only assist with the making of legal documents such as Wills and Lasting Powers of Attorney, we also take a practical approach of encouraging the writing of letters to family and Executors so as to explain the reasons for decisions taken. These letters are your way of speaking when you no longer have a voice, either through lost mental capacity or on your passing. This way we can deal with death or dementia and hopefully side step any problems with delusion or deceit.