Legal

Legal Matters

We all need to make plans for the future and it is particularly important to work out what are the best options when there is a family member with a learning disability. Any money or property they inherit could impact on any means-tested benefits they are entitled to or make them susceptible to financial abuse.

So, it’s important to ensure that leaving money or assets for a family member with a learning disability is done in a way that is recognised in law rather than relying informally on relatives or friends to put it in place.

Making a Will

A will is a legal document which sets out your wishes with regard to everything you own after your death. The Wills Act 1837 lays down the rules as to how a will should be drawn up – and if it fails to meet any one of the legal requirements, it will be invalid.

Therefore, it is important that your will is drawn up professionally, duly signed and dated and witnessed. If you have a family member who is reliant on others for care, it is of paramount importance that you make a will and consider using a Trust to make provision for them.

It is advisable to consult a solicitor or other legal professional who specialises in making wills and setting up trusts.

What is a Trust?

A trust is a formal transfer of assets – property, shares or cash – to a number of people (at least two and not more than four) to a trust company with instructions that they hold the assets for the benefit of others. The assets left can then be used to pay for everyday expenses, from services like care and education to accommodation, transport or holiday.

There are a number of types of trusts, and therefore, it is important to take advice from a solicitor who can go through the options with you.

Unlike a lump-sum inheritance, payments from a trust will not affect your loved one’s ability to claim state or local authority benefits. Also, by placing responsibility for managing the money with Trustees you avoid leaving your child vulnerable to mismanagement or people who may not have their best interests at heart. 

Lasting Power of Attorney 

A Lasting Power of Attorney (LPA) is a legal document which lets an individual (the donor) appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf.

They can only be made by someone aged 18 or over. They must have mental capacity (the ability to make their own decisions) when they make their LPA.

There are two types of LPA:

  • health and welfare
  • property and financial affairs

You can choose to make one type or both.

How is ‘mental capacity’ defined? 

Mental capacity is the legal term given to the ability to make decisions. If an individual lacks mental capacity, they are unable or have difficulty in making decisions some or all of the time. 

This may be due to a learning disability, dementia, a mental health problem, a brain injury or stroke. A good test for this is to consider if your relative is able to talk about their future and express their wishes. Most people with severe learning disabilities would not have this capacity so this option would be not available to them. A Court of Protection deputy would be the best solution in this case.

What decisions does an LPA allow an Attorney to make? 

Attorney’s must always act in the other person’s best interests at all times. They are governed by a strict set of rules legislated for under the Mental Capacity Act 2005 and they might only be called upon to make certain decisions.

Health and welfare lasting power of attorney

Use this LPA to give an attorney the power to make decisions about things like:

  • your daily routine, for example washing, dressing, eating
  • medical care
  • moving into a care home
  • life-sustaining treatment

It can only be used when you’re unable to make your own decisions.

Property and financial affairs lasting power of attorney

Use this LPA to give an attorney the power to make decisions about money and property for you, for example:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or a pension
  • selling your home

You can find out more about how to make an LPA and the necessary forms on the gov.uk website.

You can also contact the Office of the Public Guardian at customerservices@publicguardian.gsi.gov.uk

Telephone: 0300 456 0300

Becoming a deputy for someone who ‘lacks mental capacity’

You can apply to become someone’s deputy if they ‘lack mental capacity’. This means they can’t make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times.

People may lack mental capacity because, for example:

  • they’ve had a serious brain injury or illness
  • they have dementia
  • they have severe learning disabilities

As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.

There are two types of deputy.

Property and financial affairs deputy

You'll do things like pay the person's bills or organise their pension.

Personal welfare deputy

You’ll make decisions about medical treatment and how someone is looked after.

If a person already has a lasting power of attorney (LPA) or enduring power of attorney (EPA), they don’t usually need a deputy

For further information about applying to be a deputy, please visit https://www.gov.uk/become-deputy

 

Solicitors in Reading

This is not intended to be a complete list of solicitors in Reading, but only those known to us.

 

Boyes Turner

Abbots House, Abbey Street

Reading, Berkshire, RG1 3BD

Tel : 0800 884 0723

www.boyesturner.com

Specialities: Education, Special Needs Trusts, Wills & Trusts

 

Sergeant & Sheppard

150 Friar Street, Reading, Berkshire, RG11 1HE

Tel : 0118 957 3425

Specialities: Court of Protection, Enduring Powers of Attorney, Lasting Powers of Attorney, Mental Capacity, Special Needs Trusts, Wills & Trusts

 

Herrington Carmichael - Wokingham:

Herrington Carmichael LLP, 27 Broad Street,

Wokingham, Berkshire. RG40 1AU

Tel: 118 977 4045

http://www.herrington-carmichael.com