Latest blog entries All blog entries from http://www.wilsonandfish.co.uk/ http://www.wilsonandfish.co.uk/Blog/Latest.html Fri, 06 Mar 2015 21:23:08 +0000 en-gb Scotland's Ageing Population & Powers of Attorney http://www.wilsonandfish.co.uk/Blog/power-of-attorney/scotlands-ageing-population-a-powers-of-attorney.html http://www.wilsonandfish.co.uk/Blog/power-of-attorney/scotlands-ageing-population-a-powers-of-attorney.html The most recent figures from the Scottish Government show that by the year 2037, the population will have grown to 5.78 million people. This is excellent news, but also arouses some cause for concern: around 1.47 million people will be aged 65 and above, meaning that a particularly large number of people in society may be in need of extra care.

It is hoped that in most circumstances, families will be able to adjust to accommodate the needs of older relatives. However, there are some mechanisms that can be used to make the job of caring for an elderly relative much easier to organise, and easier to do: Powers of Attorney (POA) are a very useful way of setting out how you are going to be cared for, when you are no longer to look after yourself.

What is a Power of Attorney?

A Power of Attorney is a legal document that allows you, the 'granter' of power, to choose someone that you know - either a member of your family or close friend - to be responsible for looking after your interests when you are older, as your 'Attorney'.

Unfortunately, and unhelpfully, no one can foresee the future. The law offers a practical solution to this problem by making different types of POA available for use:

1. Financial Power of Attorney

This particular kind of POA relates to responsibility for your finances and/or property. It is sometimes referred to as a 'Continuing Power of Attorney'.

A Financial POA should include amongst other things, details of how your money should be spent and whether or not any of your property should be sold, if the circumstances warrant it. It is also wise to consider stipulating what role your Attorney is to have in relation to your bank accounts, and what bills are likely to need to be paid.

2. Welfare Power of Attorney

Unlike a Financial POA, a Welfare POA allows someone else to make decisions about your personal welfare. Also unlike a Financial Power of Attorney, this will only come into effect when it is established that you are unable to cater for your own welfare. This will require the agreement of a doctor that you are not able to manage your own care, only after which will the powers become available.

This kind of document will normally contain details about where you should live if you suffer from any incapacity and any special decisions to be taken regarding medical treatment.

3. Combined Power of Attorney

Both financial and welfare powers are contained in a Combined POA. Much will depend on your circumstances, but it is possible for financial powers to be used immediately following the POA being granted, while the welfare powers will not be available until you are unable to look after your own personal care.

How is a Power of Attorney created?

A Power of Attorney is a legal document that gives legal responsibility for the financial and/or personal care of a human being to someone else. Given that this involves the granting of a substantial degree of power to someone, there are certain requirements that a POA needs to meet to be legally valid:

A Power of Attorney must be detailed in a written document;

  • You as the Granter must sign the document, and include what powers you are giving your Attorney, whether they are financial, welfare or both; and
  • The document must be approved by a legal professional, who will check that:
    • That you as Granter understand the consequences of what it is you are doing when you sign the document;
    • That the creation of the document is not the result of any pressure being exerted on you by someone else.

Who can become an Attorney?

As a matter of law, anyone can become an Attorney. It is the decision of you as the 'Granter' as to who you wish to appoint to the role. However, who you appoint can be influenced by the type of Power of Attorney that is being created. It is important to remember that whoever takes the role of an Attorney will have complete control over your financial and/or welfare needs, and should be someone who is responsible and trustworthy.

Another very practical point regarding a POA is that, before it is created, a Grantor should have a detailed discussion with their prospective Attorney on what the future may bring: consider the onset of potential illness and what action needs to be taken; and decide on how property is to be organised. It is important to establish that a prospective Attorney is prepared for their role as much as possible, before this is set down in law. It is also possible to select more than one Attorney, if the circumstances warrant certain people to be made responsible for different aspects of your care.

The idea of discussing and planning for a time when you are no longer able to function independently may sound a little macabre. The reality however is that there will come a point when everyone needs some help in their daily lives, particularly so as age. A Power of Attorney is a very effective way of ensuring that (i) you make all the decisions regarding your care; and (ii) there is no involvement of outside parties where this can be avoided.

The creation of a Power of Attorney can be complex: not only must you understand what you are doing in creating the document, but your Attorney must appreciate the nature of the role that they will eventually take on. The help of an experienced team of lawyers can make the process much less daunting, and will allow for any questions that you have to be answered. At Wilson & Fish we can advise you on the technicalities of creating a Power of Attorney, what kind is most suitable for your needs, and how best to select an Attorney. Please contact our solicitors today on 0141 222 7951

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markwilson@wilsonandfish.co.uk (Mark Wilson) Power of Attorney Mon, 02 Mar 2015 11:27:19 +0000
HMRC Scrap Proposals on Trust Taxation http://www.wilsonandfish.co.uk/Blog/wills/hmrc-scrap-proposals-on-trust-taxation.html http://www.wilsonandfish.co.uk/Blog/wills/hmrc-scrap-proposals-on-trust-taxation.html HMRC has cancelled plans to split the nil rate band between multiple trusts established on different days by the same settlor.

Had the plans gone through, there would have been an advantage for any affluent individuals with multiple trusts.

Nil Tax

HMRC was seeking to remove a practice that saw high net worth clients creating a number of trusts over a certain period. When created on different days, the legal settlements would all have their inheritance tax nil rate band against any inheritance tax charges.

It is currently possible to create multiple trusts of one estate so that all inheritance was exempt from tax. The inheritance was created so that each trust would fall under the nil tax rate band. Under the proposed changes, the advantage of multiple trusts would have been removed entirely.

Tax Avoidance?

Despite the government's attempts to clampdown on this way of leaving tax, the government cancelled their proposed changes on inheritance tax.

The consultations carried out by the government included multiple companies, with the overall consensus being that the government should look to change the law on multiple trusts rather than revamp the entire system.

Sarah Banner, a senior associate in the Wealth Protection team, said:"In principle legitimate changes to the current complicated regime for trust calculations that genuinely simplified the system would be welcomed by clients and advisors alike. 

“However, the philosophy underlying what was originally proposed in a single settlement nil rate band seemed to be that all trusts are used for aggressive tax planning and tax avoidance which in practice was simply not the case.

“For a number of clients trusts are created over many years and for many different purposes and not as part of the tax planning structure."

Contact Us

If you require legal advice regarding the creation of a trust or to ensure that your inheritance is safe, contact us today for legal advice and representation by using our online contact form.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Wills Mon, 02 Mar 2015 10:16:07 +0000
Number of Trusts Fall in The UK http://www.wilsonandfish.co.uk/Blog/wills/number-of-trusts-fall-in-the-uk.html http://www.wilsonandfish.co.uk/Blog/wills/number-of-trusts-fall-in-the-uk.html The number of trusts in the UK have fallen with experts citing reforms to the tax system making trusts a less desirable option for the most wealthy.

The number trusts required to declare their income fell by almost 20% between 2008- 2013 with the tax paid by trusts falling below £1bn.

Tax Rate Improvements

According to experts the reason for the decline is likely to be the introduction of a new tax band in 2007, with the new nil rate band increasing the tax band for a married couple to £650,000.

Capital Gains Tax fell by 17% between 2010- 2013, with the capital gains tax paid on trusts falling from £480m to £340m.There is currently no overall limit on how much someone can allocate to trusts without paying some sort of inheritance tax, as long as the assets do not exceed the nil-rate threshold of £325,000.

Andrew Hubbard, a legal tax expert, said that government tax increases were the main reason for people moving away from using trusts with the advantage of creating a trust for the mega wealthy reduced. He said:“It is quite rare nowadays for trusts to be set up purely with a tax motive . The tax regime is essentially now tax-neutral.”

Contact Us

For legal advice regarding the creation of a will or a trust contact us today. Our team of expert lawyers will be able to give you the legal advice needed to ensure that you are able to leave an inheritance for those you love. To arrange a solicitor meeting regarding wills and inheritance, contact us today using our online contact form.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Wills Mon, 23 Feb 2015 10:33:25 +0000
Planning for the Future: Top 4 FAQs Regarding Powers of Attorney http://www.wilsonandfish.co.uk/Blog/power-of-attorney/power-of-attorney-faqs.html http://www.wilsonandfish.co.uk/Blog/power-of-attorney/power-of-attorney-faqs.html It has been recently claimed by legal authorities that those hiding the symptoms or effects of dementia due to the stigma of mental illness is leading to a rise in the number of wills being dispute by friends and family. 

A way of avoiding such disputes is for those concerned about their future capacity to select someone they trust to act on their behalf if they are unable to do so by creating a power of attorney. Here's our top 4 FAQs regarding powers of attorney. Contact Wilson & Fish Solicitors, Glasgow, using our online enquiry form.

1. What is Power of Attorney?

Power of attorney is a written document appointing someone to act on the behalf of the granter in respect of decisions that are required to be made when the granter is unable to make them themselves. The person assigning the power is known as the ‘granter’ and the person appointed is the ‘attorney’.

There are different types of power of Attorney:

  • General Power of Attorney - is usually created for a set amount of time or for a specific issue.
  • Continuing Power of Attorney – relates to the granter’s property of financial affairs, for example the powers to manage bank accounts or sell a house. A continuing power of attorney can come into effect whilst the granter still has capacity and will continue, should the granter lose capacity at some future point. The details of the granter’s wishes must be included in the written power of attorney document.
  • Welfare Power of Attorney - enables the Attorney to make decisions about the granter’s health and welfare but only if they are unable to do this themselves, otherwise known as lacking capacity.

Creating a power of attorney can be useful for someone who is anticipating losing capacity or can be used to handle an individual’s affairs during periods of temporary incapacity.

2. How do you Create a Power of Attorney

The requirements for appointing a lasting power of attorney are that:

  1. the donor must be over 18; and
  2. have mental capacity when making the order.

As the creating of a power of attorney deals with the possibility of circumventing an individual’s explicit request, there are rigid statutory requirements in place for the creation of such a power. These include:

  • a power of attorney must be expressed in a written document;
  • the document must be signed by the granter; and state clearly that the powers are general, continuing or welfare or a combination of both;
  • a welfare power of attorney must include a statement which shows that the granter has considered how incapacity is to be determined. It is in this document a statement setting out that the powers are only exercisable once the granter has lose capacity is included; and
  • it must incorporate a certificate in a set format by a practising solicitor, a practising member of the Faculty of Advocates or a registered and licensed medical practitioner which certifies that he or she:
    • has spoken with the granter immediately before the granter signed the document;
    • is satisfied, either because of their personal knowledge of the person or because of consultation with a trusted person who has this knowledge, that at the time of granting power, the granter understands its nature and extent; and
    • has no reason to believe that the granter is acting under undue influence.

Attorneys have no authority to act until after the document has been registered by the Public Guardian. This process must be robustly completed with the granter’s wishes explicitly stated in order to avoid complications at a later time when they may no longer be able to express their intentions.

3. Who can be an Attorney?

There is a wide scope of persons who may be appointed as an attorney. However, as the number of wills being dispute by friends and family has proven, an attorney should be a person that the granter is confident will act responsibility and who has the necessary skills to carry out the tasks required.

Varying legal entities may be appointed attorneys:

  • An individual can be a welfare attorney.

  • An individual or a firm (for example, of solicitors) can be a continuing attorney.
  • A combination of both personally known individuals or professionals may be appointed.

There are some classes of persons that are restricted from becoming attorneys. An individual cannot act as a continuing attorney if he/she is declared as bankrupt at the time of the appointment or thereafter. For the purposes of the Adults with Incapacity (Certificates in Relation to Powers of Attorney)(Scotland) Regulations 2008 Act, a person is bankrupt if their estate has been sequestrated for insolvency or a protected trust deed has been granted. Once the bankruptcy has been discharged (after 1 year) they may act as a continuing attorney. However, bankruptcy will not affect a welfare power of attorney.

4. What are the Issues with Power of Attorney and Capacity (mental ability)?

In May 2014 Glasgow Sheriff Court heard the case of NW in which it was stated that the continuing power of attorney (CPA) under review did not satisfy the Adults with Incapacity (Scotland) Act 2000. Sheriff John Baird considered that s15(3) of the Act required a valid CPA to contain certain statements by the grantor expressing her intentions, and that the document signed by NW – which was based on a widely used template form – did not contain two of these statements.

The vast majority of the half-million CPAs registered in Scotland were based on this template form, so the immediate effect of the court’s decision was to cast doubt on the validity of all of them.

This issue was resolved by the Inner House of the Court of Session when it was decided that the wording “I, [name], residing at [address] appoint [attorney] to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000” was sufficient to comply with section 15(3)(b) of the Act, which requires a statement "which clearly expresses the granter's intention that the power of attorney be a continuing power".

Despite the resolution of this issue, the case remains as a warning over how vital clear and unambiguous drafting is when creating power of attorney. Examining how power of attorney is created and who is able to act in this capacity may assist in reducing the number of legal disputes over these documents.

Contact Wilson & Fish Solicitors, Glasgow

Creating a power of attorney and selecting an individual to act in this capacity and be a difficult and emotional task. For professional, proficient and specialist advice on creating powers of attorney, or executry, probate or wills, contact Wilson and Fish Solicitors by calling 0141 530 2109 or using our online contact form.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Power of Attorney Mon, 16 Feb 2015 13:11:33 +0000
Legal Battle Over Robin Williams’ Inheritance http://www.wilsonandfish.co.uk/Blog/wills/legal-battle-over-robin-williams-inheritance.html http://www.wilsonandfish.co.uk/Blog/wills/legal-battle-over-robin-williams-inheritance.html The family of the late Robin Williams are set to take legal action over a dispute regarding the late actors' will and inheritance.

The widow of the actor, who took his own life in August 2014, claims that the children from two previous marriages took items without permission and invaded her home to obtain them. Susan Schneider has since filed legal papers in an attempt to retain items that are in the house she shared with Williams.

Countersuit

A countersuit from Williams’ children claims that they are not able to obtain what is rightfully theirs due to Ms Schneider banning them from the family home. Williams left his family mansion to Ms Schneider as well as a trust fund that was agreed in their prenuptial arrangement, but left the vast majority of his estimated $32.5 million dollar estate to his children, as well as memorabilia, clothing, jewellery and records.

Whilst Ms Schneider’s lawsuit acknowledges that the vast majority of items belong to the children, she has asked the courts to grant her the ring she was given by Williams, the tuxedo he wore on their wedding day and a clear definition on what counts as memorabilia, and what is not.

The countersuit from Williams’ three children states in legal papers that “The Williams children are heartbroken that [the] petitioner, Mr Williams’s wife of less than three years, has acted against his wishes by challenging the plans he so carefully made for his estate.”

Danger of Inheritance

This incident regarding the estate and inheritance of Robin Williams highlights the issues that can arise in the creation of a will. Despite the comedian having a well drafted will that was up to date with circumstance, it highlights the danger of language in a will, and the issues that can arise regarding definition when contesting a will.

Contact Us

If you require legal advice in regards to planning a will, or need legal representation in contesting a will, our team of expert solicitors can help. Contact us today using our online contact form.

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markwilson@wilsonandfish.co.uk (Mark Wilson) Wills Mon, 16 Feb 2015 10:13:55 +0000