Later Life Wills and Probate

Later Life Wills and Probate

The various bodies you might encounter

If you are helping a loved one who is ill or vulnerable in their later life, whether formally or informally, there are various bodies that you might encounter with whom you will need to liaise to assist you with your loved one’s affairs.

Leila Murray, head of the Wills and Probate team with Kerseys Solicitors in Ipswich, Felixstowe and Colchester highlights the main organisations and outlines why you may need to deal with them.

Whilst some organisations might be happy to liaise with you on an informal basis, many will not. Even those bodies which are willing to discuss your loved one’s affairs will require proper authority before allowing you to make any decisions for them.

In addition to your loved one’s solicitor, the main organisations that you might need to contact during this stage include, the Office of the Public Guardian, the Court of Protection, and the Official Solicitor. You may also have to deal with the NHS, and your local authority.

Making sure you have the right authority

If you know that your loved one has planned ahead by making a power of attorney, you will need to locate the original. This might be stored with their papers at home, but it is more likely that their solicitor will be holding it for safekeeping. If so, they will need identification from you to release the original. Some solicitors will also require either your loved one’s authority or, if they no longer have mental capacity, some form of medical proof of such lack of capacity.

Office of the Public Guardian

The Office of the Public Guardian is responsible for registering powers of attorney and maintaining records of all the registered powers of attorney in England and Wales.

If you are uncertain about whether your loved one has made a power of attorney, it is possible to request a search of the Office of the Public Guardian’s records. This requires a specific form, which our solicitors can assist you to complete.

If you already know that a power of attorney exists, then you might need to liaise with the Office of the Public Guardian to register it. Again, this is a process with which our solicitors can assist. The process is dependent on the type of power of attorney:

• if your loved one made an enduring power of attorney, then it will be up to you to register this; or
• if they made a lasting power of attorney then this may already be registered.

You should check the position with a solicitor to ensure you are fully aware of what is required of you.

The Court of Protection

The Court of Protection steps in when somebody loses mental capacity without having made a power of attorney, or when a power of attorney has been misused.

Whilst establishing authority to act, you might need to be in touch with the Court of Protection. An application to the Court of Protection, whether a general application to be appointed to manage someone’s affairs or an application asking the court to make a specific decision on the person’s behalf, is a very serious matter and one which requires sufficient evidence and various prescribed application forms.

In some circumstances, the Court of Protection may decide that it is appropriate to appoint a panel deputy to deal with your loved one’s affairs, either temporarily or permanently. For example, if there is any disagreement among the family as to who should be appointed, or if the person’s financial affairs are particularly onerous and would be better handled by a professional, or if there has been some evidence of financial abuse.

If so, then you will also need to liaise with the panel deputy. Panel deputies are solicitors who have been specifically vetted and chosen by the Court of Protection on the basis of their experience and knowledge.

The Official Solicitor

The Official Solicitor’s Office is a governmental body which acts on behalf of those who are vulnerable and unable to instruct a solicitor of their own volition.

If the Court of Protection does need to become involved, the Official Solicitor may also be appointed. This is often the case when an application is being made to remove an attorney for wrongdoing, or if there are other particular safeguarding concerns around your loved one.

If the Official Solicitor is appointed, they will be appointed on behalf of your loved one, rather than you, but you will need to liaise and negotiate with them. The Official Solicitor’s Office is an independent government body. The Court of Protection refers matters to the Official Solicitor’s Office and, within the organisation, a suitable solicitor is chosen and appointed to act on behalf of your loved one. If the appointment of the Official Solicitor is deemed necessary, the cost of this service will be met from your loved one’s funds.

Acting for your loved one once authority is established

If you are appointed as your loved one’s attorney or deputy, you would then need to deal with various organisations to ensure their affairs continue to run smoothly and that their needs are taken care of. This would include financial institutions, such as their existing banks and any investment companies, as well as potentially the Land Registry and conveyancing solicitor if they have a property that needs to be sold, and a financial advisor who specialises in later life clients to ensure that your loved one’s funds are securely and appropriately invested in a risk-averse way that will yield the best possible returns.

Whilst your loved one’s financial position is important to ensure that they have access to suitable care, if a loved one is ill or vulnerable you may also be concerned about the health organisations you need to contact.

Local authority – social services

Depending upon their financial circumstances, your loved one’s local authority may be involved in ensuring that they are placed in a suitable care home or that suitable at-home care is provided. The local authority will also be key in establishing whether funding for your loved one’s care is available.

Provided you have the relevant authority, you are entitled to attend any meetings with the local authority when financial support is discussed.

National Health Service (NHS)

Similarly, the NHS may be involved in discussions and decisions surrounding care funding. NHS care funding is available in limited circumstances, but you should obtain legal advice and explore whether this applies to your loved one. You may also be required to attend meetings with NHS doctors, or other medical staff, to discuss aspects of your loved one’s care and how this should be managed.

If you are making decisions on their behalf, it is important that you ensure you are involved in the process all the way along so that you can make decisions on a fully informed basis and one that is in the best interests of your loved one.

How we can help

Acting for a loved one when they are ill or vulnerable can be very rewarding, but it can also be an onerous responsibility. Our solicitors can help you to ensure that your duties as an attorney or deputy are adhered to properly and fully, and that your loved one is cared for in the best possible manner.

For further information, please contact please contact a member of our Private Client team at Kerseys Solicitors in Ipswich on 01473 213311, Kerseys Solicitors in Colchester on 01206 584584 or Kerseys Solicitors in Felixstowe on 01394 834557 or email us at [email protected].  Alternatively visit our website and click “Call Me Back” or try our online calculator for a free no obligation quote.