The Estate Planner - Febuary 2018 by The Asset Protection Strategy Limited

INSIDE THIS ISSUE

THE

ESTATE PLANNER Issue 38 – February 2018

Welcome to the February 2018 issue of The Estate Planner. In this issue, we look at lasting powers of attorney, which enable individuals to take control of decisions that affect them, even in the event that they can’t make those decisions for themselves. Without them, loved ones could be forced to endure a costly and lengthy process to obtain authority to act for an individual who has lost mental capacity. An individual can create an LPA covering their property and financial affairs and/or a separate LPA for their health and welfare. It’s possible to appoint the same or different attorneys in respect of each LPA, and both versions contain safeguards against possible misuse. The full article can be read on page 02. We spend our lives working to provide for ourselves and our loved ones. You may have a property (in the UK or overseas), shares, savings and investments, as well as your personal possessions. All of these assets are your 'estate'. Making a Will ensures that when you die, your estate is shared according to your wishes. Everyone should have a Will, but it is even more important if you have children, so on page 04 we look at what you need to consider.

It’s good to talk To arrange an appointment or to discuss any concerns that you may have in relation to making appropriate protection for you, your loved ones and your estate, please contact us. We look forward to hearing from you.

INHERITANCE TAX CHECKLIST

Start planning today to spare your family from a potential Inheritance Tax bill tomorrow

1. The main ways to avoid Inheritance Tax are to spend your money while you are alive or give it away. 2. Work out how much IHT might be due on your estate and regularly review it so you know what potential liability there is. 3. Find out if the rules which took effect from October 2007, which mean that married couples and registered civil partners can now make use of each other’s tax-free allowance without special tax planning, apply to you. 4. If you set up special Wills to deal with IHT, review them to see if they are still relevant.

5. Make full use of any tax-free gifts you can make whilst you are alive. 6. Put life insurance policies under an appropriate trust. 7. If there's going to be a big IHT bill, think about taking out an insurance policy for your heirs to pay the bill. 8. Make a Will if you don't have one – otherwise the people you want to inherit may not. 9. Anything you leave to charity is free of IHT, so it can be a useful way of reducing your potential IHT liability while benefiting a good cause.

10. Never take steps that might leave you struggling for money while you are alive in order to save tax after you've died.

LASTING POWER OF ATTORNEY

Taking control of decisions even in the event you can’t make them yourself A lasting power of attorney (LPA) enables individuals to take control of decisions that affect them, even in the event that they can’t make those decisions for themselves. Without them, loved ones could be forced to endure a costly and lengthy process to obtain authority to act for an individual who has lost mental capacity. An individual can create an LPA covering their property and financial affairs and/or a separate LPA for their health and welfare. It’s possible to appoint the same or different attorneys in respect of each LPA, and both versions contain safeguards against possible misuse. INDIVIDUAL LOSES THE CAPACITY TO MANAGE THEIR OWN FINANCIAL AFFAIRS It’s not hard to imagine the

difficulties that could arise where an individual loses the capacity to manage their own financial affairs and without access to their bank account, pension and investments, family and friends could face an additional burden at an already stressful time. LPAs and their equivalents in Scotland and Northern Ireland should be a consideration in all financial planning discussions and should be a key part of any protection insurance planning exercise. Planning for mental or physical incapacity should sit alongside any planning for ill health or unexpected death. Commencing from 1 October 2007, it is no longer possible to establish a new Enduring Power of Attorney (EPA) in England and Wales, but those already in existence remain

valid. The attorney would have been given authority to act in respect of the donor’s property and financial affairs as soon as the EPA was created. At the point the attorney believes the donor is losing their mental capacity, they would apply to the Office of the Public Guardian (OPG) to register the EPA to obtain continuing authority to act. GIVING AUTHORITY TO A CHOSEN ATTORNEY IN RESPECT OF FINANCIAL AND PROPERTY MATTERS Similar provisions to LPAs apply in Scotland. The ‘granter’ (donor) gives authority to their chosen attorney in respect of their financial and property matters (‘continuing power of attorney’) and/or personal welfare (‘welfare power of attorney’). The latter only

takes effect upon the granter’s mental incapacity. Applications for powers of attorney must be accompanied by a certificate confirming the granter understands what they are doing, completed by a solicitor or medical practitioner only. LPAs don’t apply to Northern Ireland. Instead, those seeking to make a power of appointment over their financial affairs would complete an EPA. This would be effective as soon as it was completed and would only need to be registered in the event of the donor’s loss of mental capacity with the High Court (Office of Care and Protection). WHERE THE DONOR HAS LOST MENTAL CAPACITY IN THE OPINION OF A MEDICAL PRACTITIONER It’s usual for the attorney to be

able to make decisions about the donor’s financial affairs as soon as the LPA is registered. Alternatively, the donor can state it will only apply where the donor has lost mental capacity in the opinion of a medical practitioner. An LPA for health and welfare covers decisions relating to an individual’s day-to-day wellbeing. The attorney may only act once the donor lacks mental capacity to make the decision in question. The types of decisions covered might include where the donor lives and decisions concerning medical treatment. OPTION TO PROVIDE AUTHORITY TO GIVE OR REFUSE CONSENT FOR LIFESUSTAINING TREATMENT The donor also has the option to provide their attorney with the authority to give or refuse consent for life sustaining treatment. Where no authority is given, treatment will be provided to the donor in their best interests. Unlike the registration process for an EPA, registration for both types of LPA takes place up front and is not dependent on the donor’s mental capacity. An attorney must act in the best interest of the donor, following any instructions and considering the donor’s preferences when making decisions. They must follow the Mental Capacity Act Code of Practice which establishes five key principles: 1. A person must be assumed to have capacity unless it’s established he or she lacks capacity. 2. A person isn’t to be treated as unable to make a decision unless all practicable steps to help him or her do so have been taken without success. 3. A person isn’t to be treated as unable to make a decision merely because he or she makes an unwise decision. 4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made,

in his or her best interests. 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it’s needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. TRUST CORPORATION CAN BE AN ATTORNEY FOR A PROPERTY AND FINANCIAL AFFAIRS LPA A donor with mild dementia might be provided with the means to purchase items for daily living, but otherwise their financial matters are undertaken by their attorney. The code of practice applies a number of legally binding duties upon attorneys, including the requirement to keep the donor’s money and property separate from their own or anyone else’s. Anyone aged 18 or over who has mental capacity and isn’t an undischarged bankrupt may act as an attorney. A trust corporation can be an attorney for a property and financial affairs LPA. In practice, attorneys will be spouses, family members or friends, or otherwise professional contacts such as solicitors. RELATING TO THINGS AN ATTORNEY SHOULD OR SHOULDN’T DO WHEN MAKING DECISIONS Where joint attorneys are being appointed, the donor will state whether they act jointly (the attorneys must make all decisions together), or jointly and severally (the attorneys may make joint decisions or separately), or jointly for some decisions (for example, the sale of the donor’s property) and jointly and severally in respect of all other decisions. An optional but useful feature of the LPA is the ability to appoint a replacement attorney in the event the original attorney is no longer able to act. The donor can leave instructions and preferences, but if they don’t their attorney will be free to make any decisions they feel are correct. Instructions relate to things the attorney should or shouldn’t do when making decisions – not selling

the donor’s home, unless a doctor states the donor can no longer live independently or a particular dietary requirement would be examples. BELIEFS AND VALUES AN ATTORNEY HAS TO CONSIDER WHEN ACTING ON THE DONOR’S BEHALF Preferences relate to the donor’s wishes, beliefs and values they would like their attorney to consider when acting on their behalf. Examples might be ethical investing or living within close proximity of a relative. The following apply to both forms of LPA. A ‘certificate provider’ must complete a section in the LPA form stating that as far as they are aware, the donor has understood the purpose and scope of the LPA. A certificate provider will be an individual aged 18 or over and either someone who has known the donor personally well for at least two years, or someone chosen by the donor on account of their professional skills and expertise (for example, a GP or solicitor). ALLOWING FOR ANY CONCERNS OR OBJECTIONS TO BE RAISED BEFORE THE LPA IS REGISTERED There are restrictions on who may act as a certificate provider – these include attorneys, replacement attorneys, family members and business associates of the donor. A further safeguard is the option for the donor to choose up to five people to be notified when an application for the LPA to be registered is being made.

must have mental capacity when they fill in the forms. Otherwise, those seeking to make decisions on their behalf will need to apply to the Court of Protection for a deputyship order. This can be expensive and time-consuming and may require the deputy to submit annual reports detailing the decisions they have made. There are strict limits on the type of gifts attorneys can make on the donor’s behalf. Gifts may be made on ‘customary occasions’, for example, birthdays, marriages and religious holidays, or to any charity to which the donor was accustomed to donating. Gifts falling outside of these criteria would need to be approved by the Court of Protection. An example would be a gift intended to reduce the donor’s Inheritance Tax liability. WANT TO REVIEW THE ESTATE PRESERVATION OPPORTUNITIES AND CHALLENGES? Planning for a time when you’re no longer around may seem daunting, but it doesn’t have to be. We’re here to take the uncertainty out of preparing for the future. All it takes is an open conversation about what you want for your family. Of course, you’ll have questions, but together we can find the answers. And the earlier you start planning, the earlier you’ll be ready. Whatever stage of life you’re at, we can guide you through the opportunities and challenges you may face. To discuss your requirements, please contact us – we look forward to hearing from you.

This allows any concerns or objections to be raised before the LPA is registered, which must be done within five weeks from the date on which notice is given. The requirement to obtain a second certificate provider where the donor doesn’t include anyone to be notified has now been removed as part of the Office of the Public Guardian (OPG) review of LPAs. STRICT LIMITS ON THE TYPE OF GIFTS ATTORNEYS CAN MAKE ON THE DONOR’S BEHALF A person making an LPA can have help completing it, but they

PROTECTING YOUR CHILDREN’S FUTURE

What you need to consider: your questions answered We spend our lives working to provide for ourselves and our loved ones. You may have a property (in the UK or overseas), shares, savings and investments, as well as your personal possessions. All of these assets are your 'estate'. Making a Will ensures that when you die, your estate is shared according to your wishes. Everyone should have a Will, but it is even more important if you have children, so what do you need to consider? Q: ‘I have children under 18’ A: If you die unexpectedly without a Will and have children under 18, others can make decisions about who’ll take care of your children and manage their finances. A Will allows you to name people you and your children trust to look after their wellbeing. Once these wishes are stated clearly in your Will, you can be sure your children will be properly protected. Q: ‘I have children over 18’ A: If you die without a Will, your estate will be distributed in accordance with the Rules of Intestacy, which govern who will inherit your property when you are gone. They state that all children are to receive their inheritance outright at the age of 18, whatever their financial position or their levels of maturity. The Rules also say that your estate will be divided

up equally between all your children, which may not be what you want. A Will can ensure that your grown-up children will get the maximum benefit from their inheritance. It may be that you want them to inherit at age 21 or 25 rather than age 18, or perhaps you’d prefer that they had a share of their inheritance at age 18 and receive the remainder at a later date. Writing a Will also ensures that money or other gifts given to your children during your lifetime can be taken into account, therefore helping to minimise disputes between your children after you’ve gone.

property and possessions will be inherited by your children, meaning your new partner will be left unprovided for. However, if you’ve remarried or entered a new registered civil partnership and you die without a Will, your new spouse or partner will inherit the first £250,000 of your assets outright, which may leave your children with little or no inheritance.

new spouse or partner and your children, and avoid any unnecessary disputes after your death. WANT TO REVIEW YOUR SITUATION? Don’t leave it to chance – to discuss your requirements, please contact us today.

By writing a Will, you can make provision for both your

Q: ‘I have stepchildren’ A: If you’d like to provide for a stepchild in the event of your death, you need to state this clearly in your Will, otherwise they will not inherit any of your property or possessions. If you die without a Will, your estate is distributed in accordance with the Rules of Intestacy, which state who will inherit your property when you are gone. They were created back in 1925 and don’t reflect the diversity of today’s relationships – in fact, they ignore stepchildren entirely. Q: ‘I have children from a previous relationship’ A: If you’re not married or in a registered civil partnership with your new partner and you die without a Will, all your

The content of this publication is for your general information and use only, and is not intended to address your particular requirements. The content should not be relied upon in its entirety and shall not be deemed to be, or constitute, advice. Although endeavours have been made to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No individual or company should act upon such information without receiving appropriate professional advice after a thorough examination of their particular situation. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of the content. Thresholds, percentage rates and tax legislation may change in subsequent Finance Acts. Levels and bases of, and reliefs from, taxation are subject to change and their value depends on the individual circumstances of the investor. The Financial Conduct Authority does not regulate Will Writing, Inheritance Tax Planning or Taxation Advice. All figures relate to the 2017/18 tax year, unless otherwise stated.