LEGAL AVOIDING ACCIDENTAL INHERITANCES
WHAT IS A DEPUTYSHIP ORDER? A deputyship order gives you (usually a close friend or family of the person who has lost capacity) the ability to make decisions on behalf of someone who has lost the capacity to care for and make decisions for themselves. You might apply for a deputyship order when there is no lasting power of attorney (or enduring power of attorney) in place. A Lasting Power of Attorney can only be granted if the donor is considered as having capacity. The lack of capacity may be because of any impairment of or disturbance in the functioning of the mind or brain, such as dementia or a stroke. The Court of Protection’s deputyship order will set out the deputy’s powers. The powers may relate, for example, to the person’s finances, property or accommodation (including where they live or whether they go into care), their medical treatment and other healthcare issues, and their personal welfare, eg: what clothes they wear, and anything needed for their general care and well-being. The powers given depend on the person’s needs. A deputy must be over 18 and is often a family member or friend, although anyone can apply to the Court of Protection to be appointed. Each deputy is assessed to see what level of supervision they need from the Office of the Public Guardian. Supervision fees are payable from the funds of the person lacking capacity. Supervision may involve ongoing support; a requirement to submit a report and accounts periodically; or a Court Visitor checking how the deputyship is being managed. The proposed deputy completes a set of application forms and a suitable practitioner (eg the patient’s doctor) completes a medical report. There is a fee payable for the medical report and an application fee is payable to the Court. The deputy has to complete a declaration document about themselves. You can employ a us to help you with the application and with your duties as a deputy (once appointed). Our fees can normally be recovered from the funds of the person lacking capacity. A deputyship ends automatically if the person lacking capacity recovers or dies. If the person becomes able to make their own decisions, the deputyship order stays in force until it expires or is discharged by another Court order. A deputy who cannot, or does not want to, remain a deputy must apply to the Court to have their order discharged. The Court can also discharge a deputy who it believes has acted improperly, eg not in the person’s best interests.
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When you make a will, you may think that you have all eventualities covered, but by failing to check your pension policy and particularly the names of those you nominated as beneficiaries when you set up the pension, you are leaving yourself open to leaving a sum of money to someone you may not want to. Since 2015, it has been possible to pass on any unused pension money tax free. These days, most pensions are written into trust which means that they fall out of your estate when you die, and so may not pass to people you have named in your will. When you place your pension pot or an insurance policy into trust, you have to name a beneficiary to receive that fund. If you name your Partner for example, then separate at a later date and change your will to leave assets to your children, you may still find that your Partner would receive your pension monies. Therefore, it is prudent to check your policy and the identity of your chosen beneficiary. With the rise in the number of divorces, family structures are getting more complicated and so people are increasingly at risk of losing track of their pension and insurance plans, and of who will inherit them. It seems that anyone recently married, divorce, separated, bereaved or widowed is at risk of leaving an accidental legacy. Further, if your pension is not written into trust, it could form part of your estate and could be liable for inheritance tax. If this is the case, the money cannot be released until the tax is paid and the estate wound up. So, it is best to treat nomination forms like your will and update them after changes in lifestyle or personal circumstances.
MADELINE RAND King Davies & Partners
Deadline date for the June issue is: SUNDAY 15TH MAY
• Wills, Trusts & Probate • Conveyancing • Property Law • Housing • Family Partner Mr. Ceri Morgan L.L.B
Tel: 01656 732911 Email: info@kingdavies.co.uk www.kingdavies.co.uk
Associate Madeline Rand BA
Lloyds Bank Chambers, 18 Talbot Street, Maesteg, Bridgend, CF34 9BP
Regulated by the Solicitors Regulation Authority No.637836
