On 5 September, we attended Alzheimer Scotland's Annual Conference on the theme of "Let's Prevent, Care, Cure dementia together". The conference was a worthwhile opportunity for people whose families have been affected by dementia to find out about the latest developments in dementia care and to explore the services available to support them. Videos of the sessions can be viewed here.
With Alzheimer Scotland's theme in mind, we have prepared a helpful guide of the legal matters to consider at each step of the "Prevent, Care, Cure" process.
Prevent – Wills and Powers of Attorney
From a legal perspective, signing a will and granting a power of attorney ("POA") are the best ways to ensure that your estate is protected for your family and prevent difficulties if you lose capacity.
If you have met with a solicitor and put a will in place, you can be confident that your assets will pass in accordance with your wishes on your death and that assets are safeguarded for your family. If you have children under the age of 16, you can also appoint other individual(s) to become that child's legal guardian on your death. Without a will, your assets will pass according to archaic succession rules which do not take account of modern families and there will be no guardian(s) automatically appointed for your children.
There is a common misconception that, if you lose capacity, your spouse and/or adult children can make decisions on your behalf. This is not the case. We recommend that everyone, regardless of age, grants a POA. There are two types of POA: continuing and welfare. A continuing attorney can make financial decisions on your behalf, while a welfare attorney can make decisions relating to your care and wellbeing. Often, your financial and continuing attorney(s) are the same people, but they can be different. A POA can only be granted while you have capacity.
Care
Having a will in place means that your wishes are clear, reducing the risk of family fallouts after your death. A will makes it easier for your loved ones to deal with matters after your death.
Granting a continuing and welfare power of attorney is the most efficient way to make the process as smooth and straightforward as possible for your family. If you have a POA, your attorneys can act on your behalf with significantly less stress and hassle than if you had not granted a POA. If you have a continuing and welfare POA in place, your attorney(s) can assist you with your financial affairs (even while you have capacity) and your care or wellbeing requirements (if you do not have capacity to arrange these for yourself). If you lose capacity, your attorney(s) tasks will likely include arranging for your care needs to be assessed and ensuring that your care package is put in place.
It is important that your loved ones can act on your behalf to ensure that you have adequate care in place. For some people, there may be significant costs involved with arranging professional care. We have written previously about what to do when someone you love is diagnosed with dementia.
Cure
If, on death, you have not signed a will or your existing will is no longer appropriate for your family's circumstances, a deed of variation can be an effective way to "cure" the situation. A beneficiary, or multiple beneficiaries, may decide to "vary" their entitlement so that assets, which they would otherwise be due to inherit, pass instead to someone else, for example, other family members. A deed of variation can be a very useful tool for redistributing an estate in appropriate circumstances. With proper advice, a deed of variation can create significant tax advantages for both your estate and your beneficiaries.
If you lose capacity and have not granted a continuing and welfare POA, your family members will not automatically be able to act on your behalf. Your family may need to go to court to obtain a guardianship order, an intervention order or to apply for access to your funds. Court processes can cause significant delays in arranging care and are usually expensive. Moreover, court orders are usually for a limited period of time, meaning that your family will need to re-apply to the court after a specified period (commonly 5 or 10 years). In comparison, a power of attorney allows your attorneys to act indefinitely.
We recommend that all POAs are drafted professionally by a solicitor after a meeting with you. POAs with narrow powers or POAs that only appoint attorney(s) who are unable to act can cause difficulties. In these situations, a guardianship order may still be required.
If you have any questions about the issues raised above, please contact us.
Contributor
Solicitor
