Statutory wills news

 

Q&A with the Court of Protection team

Over the following weeks we will be sharing a series of question and answer articles about our day-to-day lives in a Court of Protection team. This week, I interviewed Ruth Meyer who is a partner and head of the Court of Protection team.

Ruth Meyer

Ruth qualified in 1990 and is a partner at Boyes Turner, heading up the Court of Protection group. Ruth has considerable experience in Trustee and Deputyship work and particularly in acting for clients who have suffered profound injury resulting from the negligence of others.

Her memberships include the Law Society’s Probate Section, the Society of Trust and Estate Practitioners and Solicitors for the Elderly. She is also a panel member of Mencap.

In 2013 Ruth was ranked as a leading UK Court of Protection Solicitor in the Chambers Guide to the UK Legal Profession and is described as caring ‘passionately about her clients’ welfare’ in the Legal 500.

  • How much variety is there in your work?

    The work within the Court of Protection team is highly varied. My day changes from day to day. Each family is unique and we offer a very bespoke service to meet the needs of clients. I manage deputyships for people who do not have sufficient capacity to manage their finances as well as private trusts for clients who do have capacity to manage their finances but remain vulnerable. We also deal with the purchase and adaptation of properties, the employment of carers and case managers as well as therapists. We purchase equipment and ensure vat exemption forms are completed as well as dealing with annual accounts, tax returns, benefits and the investment of funds though financial advisers. In between all this many one off issues appear and in the past we have had to deal with properties that have flooded, emergency vet fees for a much loved family pet and arson attacks. The list can go on but it certainly adds to an eventful day! However, behind all this I know we have clients who are worried and need to know that they have professional help in sorting out some very significant issues.
     
  • What do you see as the major issues/ trends in Court of Protection today? 

    I think it has become harder over the years to open up a deputyship or trust bank account. It must be very difficult for non–solicitor deputies. I have built up a good working relationship with two local banks who offer an excellent service and who will immediately sort out matters in the unlikely event of something going wrong. This is so important as it can be really stressful if you cannot access money and funds are required urgently for care or for rent.In addition I have noticed a more paper based approach as there are many forms to complete in order to obtain a deputyship. Years ago the Public Guardianship Office (as it was known then) would assign a case manager to every single file and a deputy could speak directly with the case manager to obtain some additional support on a matter that may not be straightforward.In addition, previously a visitor from the court used to visit the client each year and I would always coincide my annual visit at the same time so that we could discuss any issues together and how they could be solved. Unfortunately such visits are now randomly assigned and may only be once every three years, although on occasions I have contacted the OPG to request a visit for a vulnerable client that urgently requires it and this has been arranged.
     
  • What are the toughest problems and decisions you handle? 
     

    Some of the hardest problems relate to the finances for children who have been damaged at birth and have received a ‘substantial’ compensation award. To most people such awards do appear ‘substantial’ but the costs of therapies, adapting properties and appealing to a Special Educational Needs Tribunal can be high and expenses need to be carefully managed and budgeted for, as well as being in the child’s best interest. The difficulties arise when families want money to spend on matters that the award was not designed for such as an expensive family holiday or, contrary to this, the family do not want to spend any of the money mainly because they have got to a point in which they do not want carers or therapists in their home and wish to protect their privacy.Both issues can be difficult to manage and require diplomacy and tact. With holidays I usually explain to the family that we can pay for the additional costs of taking a disabled child on holiday as such expenses would cover the need for a larger room or specialist transport. These costs can be met from the award of compensation but if they have not been included then they will need to be paid from another ‘pot’ of money within the award so effectively we would be taking money  which has been reserved for something else.In respect to the privacy issue I have to be mindful that families do require privacy and maybe we could look at alternative solutions such as reserving a room in a local sports centre for physiotherapy or having carers who visit daily rather than live in. In respect to such matters it is better to build up the relationship with the family first and then gradually introduce carers and therapist’s so that a relationship of trust is established and the family can then see how beneficial the care and therapy is.

  • What attribute or experience do you look for in solicitors joining your team? 
     

    When looking for team members I value common sense and empathy above any other attribute. Most of our clients are vulnerable and their families may also require additional support and understanding. A solicitor needs to be able to ensure that clients feel comfortable so that they are able to ask as many questions as they want. Visiting a solicitor for the first time can be a worrying experience for clients who do not have much contact with solicitors. I usually find that as soon as clients have met me face to face they feel much more relaxed and this assists in giving advice on the way forward and building up a long term relationship.

  • Do you have any advice for anyone interested in qualifying into Court of Protection?
     

    For anyone interested in joining a Court of Protection team I would advise them to begin with the basics! They need to make sure that they have a thorough understanding of the Mental Capacity Act 2005 and the Code of Practice as this forms the basis of much of the work we do. I would then advise obtaining a working knowledge of how deputyship accounts are completed, the various forms to use as well as an understanding of income tax and who to approach for independent investment advice. Working in a Court of Protection team covers a variety of aspects and you need to have a little knowledge about a lot of things and know where and when to look things up!

  • What do you like most about working in the Court of Protection team?
     

    I really enjoy heading up the Court of Protection team. I started as an assistant solicitor with a background in Wills and Probate and eventually dealt with everything to do with Court of Protection work. This gave me a solid background and understanding of issues and now I act as deputy running a team of seven. Each team member is able to offer something different and we work together on matters so that we can offer the best possible service and advice. We use each other’s strengths to focus on applications, research matters and prepare detailed budgeting forecasts but behind all this are a team that cares passionately about the work they do and will always pull together to get the best for clients.

Statutory Will - speculating on the wishes of someone who lacks capacity and their best interests

A recent case concerning a Statutory Will has highlighted the difficulties of trying to speculate on the wishes of someone who lacks capacity and what is in their best interests.

What is a Statutory Will?

If a person is over the age of 18 and lacks the necessary mental capacity to make a will, then an application can be made to the Court of Protection for a Statutory Will to be made on their behalf.  There is a general principal under the Mental Capacity Act 2005 that any decision must be made in the best interests of the person affected by the decision.  If a person does not have a will in place, then on death their estate passes in accordance with the Intestacy Rules, which sets out the order of priority for relatives to inherit.

Who is the Official Solicitor?

When an application for a Statutory Will is made, the Court will usually invite the Official Solicitor to act on behalf of the person who lacks capacity.  This ensures that someone is acting in that person’s best interests and that the application process is conducted fairly.  The Official Solicitor considers the person’s past and present wishes and feelings (if they have been able to indicate any) as well as any beliefs and values that would influence their decision and any other factors that the person would consider, if they were able.

The Case

In the case of Re LM [2015] EWCOP91, the person who lacked capacity, LM, was awarded over £3m by the Criminal Injuries Compensation Authority to compensate her for injuries caused by an assault and provide care throughout her life.  LM was adopted so under the Intestacy Rules, her adoptive parents would have inherited her entire estate.

An application for a Statutory Will was made to appoint executors to administer the estate and then divide it between various family members, including LM’s adoptive parents.  The Official Solicitor agreed that a Statutory Will should be made for LM, but argued that 20% of her estate should be left to relevant charities.  In contrast, LM’s family argued that this should only be 5%.

LM was asked about whom she would like to leave her things (i.e. her possessions) to and she was able to indicate her family members, but she had no understanding of the size of her estate or what impact the distribution of her estate would have on her death.

The court decided that ‘it would be in LM best interests for the majority of her estate to be divided between her family in recognition for their love and devotion.’  However, it also said that ‘LM would wish to gift a proportion of her estate for charitable purposes in recognition of the considerable help that she has received from the community.’  The court felt this reflected LM’s bests interests and was a fair balance between her family and charity.

This case shows several of the factors that have to be considered when applying for a Statutory Will and the differing views of those who represent a person who lacks capacity.  Making a will is a highly personal matter and both the court and the Official Solicitor have to determine what would be in the best interests of the person lacking capacity, as well as what is fair to those who would benefit from the estate.

Below is a summary of one of the Statutory Wills we have recently prepared for a client.

Case study – Yvonne

Yvonne* is a young adult who suffered severe brain damage at birth.  A case was brought against the health authority for damages and an award was made of £2.5 million, including annual payments to be made for the rest of her life.  Yvonne’s mother continues to be her primary carer and her father had had no contact with her since she was born.

Once she reached the age of 18, Yvonne’s Deputy applied to the Court of Protection for a Statutory Will to be signed on her behalf.  The proposed will stated that on her death, the majority of Yvonne’s estate would pass to her mother, who has devoted herself to Yvonne’s care and the balance to other close family members.  An application was also made to exclude her father from the will.  We were unable to trace him, and the application was successful.

The Official Solicitor was asked to act for Yvonne in the matter and agreed in principle to the proposed will but also suggested that a proportion of her estate should pass to the charitable school which Yvonne attends, as an acknowledgement of the benefit she had received from being there.  The Official Solicitor also suggested small legacies (gifts of money) for two of Yvonne’s relatives.  When told about these, Yvonne was able to communicate her approval and the relevant clauses were included in the will, which was then approved by the Court.

Family members and Statutory Wills - can you withhold notification?

A Statutory Will is a will made on behalf of a person who does not have the required mental capacity to make a will and which is authorised by the court.

Statutory Wills can be fraught with difficulty. Not only are vast amounts of information required to put together an application but they can cause added difficulties in respect to notification to families.

What we do

At Boyes Turner we act for a considerable number of children who have received compensation for a birth injury. The compensation can be substantial. Once the child turns 18 we can put an application into the Court for a Statutory Will. Without such a will their assets will be distributed automaticallyunder the Intestacy Rules. Under these rules, the estate would be distributed equally to the parents assuming the young adult has not married or has children. The question really then revolves around whether equal distribution to the parents is fair.

We recently submitted an application in which it was decided to request a will that excluded the father of the young adult as he had almost nothing to do with his son, Anthony, since his diagnosis. The mother not only felt it “just” that the father was excluded but also wanted to ensure that he was not told about the application for a Statutory Will for fear of domestic violence. The mother was concerned that the father would find where they lived but just as importantly she felt that it was unfair that he should receive any money from Anthony, especially as he had not sent him birthday or christmas presents and had not seen him since he was 3 years old. The value of the assets was substantial – just over £2M.

The Court’s approach

The general approach by the courts is that all “interested parties” should be notified of the application unless there are “exceptional circumstances”. Interested parties will always include both parents. So, would the threat of domestic violence be treated as “an exceptional circumstance”? Apparently not!  We were advised by the Official Solicitor to serve notice but then remove the information regarding the addresses of the other parties. The mother was still unhappy but we advised her that providing notice and applying to exclude the father from a share in the estate so that he did not receive anything were two separate things. We were still going to apply to have him removed as a beneficiary – but this was even more of a reason for him to have notice of the application.  He had a right, if he so wished, to be heard fairly and object.

The outcome of Anthony’s case was a successful one. We served notice and applied to the court so that the father would not benefit under his son’s Will. However, this case shows the various layers of issues that are faced and how high tension runs in fragmented families especially where there is a lot financially at stake.

Recent case law

The recent case of I v D [2016] EW COP35 before Senior Judge Lush is very similar to many of the cases we deal with. In this case there was a fragmented family, as there are with many families with a brain injured child and a substantial award. The father who could not be located was entitled to a half share of his son’s £3.1 million estate. An application was made by the son’s mother and Deputy for a Statutory Will and for an application to dispense with the service of the application on the grounds that the father had had no contact with the son for many years and his whereabouts were unknown. If notice was dispensed with the father may never have known about his potential entitlement.

The senior judge refused the application to dispense with service as the father had a right to be heard and not enough effort had been made to locate him. The senior judge also said that this was not an exceptional case in which notice of service could be dispensed with.

Senior Judge Lush was unimpressed with the efforts to locate the father and even wondered if any attempt was made to find him at all. Interestingly the senior judge also said that more often than not these applications to dispense with service are made because it would be more convenient for the application to avoid any potential confrontation and less painful than reopening old wounds.

The point is, unless it is a very exceptional case, the father has a right to be told and if necessary a right to be heard. Each application will be decided upon its merits but any discomfort within families will not override the right of a party to be told about the application. The courts will be fair and just in their approach and if need be, as in Anthony’s case, all addresses can be removed to protect the parties from potential harm.

The Court of Protection: A History

Here at Boyes Turner, we have a rapidly expanding and developing Court of Protection team which is headed by the Court of Protection Partner and professional deputy, Ruth Meyer. The team is now made up of six members and is always busy with new and existing clients. We are not alone in this. Across the country there are Court of Protection teams working hard to meet an ever increasing demand. So where has this demand come from? And why is there such a need for these specialist Court of Protection teams?

The Masters in Lunacy

To answer these questions, we need to look at the history of the Court of Protection and the changes it has undergone in recent years. The Court of Protection as we now know it was created in 2007. It does however continue the much more established “…inherent jurisdiction of the Crown to manage the property and affairs of persons who lack capacity…” This jurisdiction can be traced back hundreds of years, although the first sign of a specialist court came with the appointment of two ‘Commissioners in Lunacy’ who were appointed in 1842 by the Commissioners in Lunacy Act.

At this time, a person could come within the jurisdiction of the Lunacy Office if they were ‘a lunatic, so found by inquisition.’ Not entirely unlike the process today, an inquisition was requested in the form of a petition which was usually presented by a relative. This petition had to be supported by an affidavit of kindred and fortune and two medical affadivits. The case could then progress to a full inquisition, at which the alleged lunatic could request a jury of up to twenty-three men. The inquisition was usually held in the town or village in which the alleged lunatic lived, and as it was a public matter it was open to all to attend.

The case of William Frederick Windham is a good illustration of a case that would have been heard in the early days of the Lunacy Office. Windham inherited a considerable estate and income on his 21st birthday following the death of his father some years earlier. Just three weeks later he married a woman, described as having a notoriously profligate character, lavishing her with jewellery and promising her an income that comprised of nearly a third of his own annual income. Perhaps unsurprisingly, a petition was brought by 15 of his relatives applying for an inquiry as to his state of mind.

The inquiry was a showcase of contemporary legal talent and lasted for 34 days, the longest lunacy inquisition in legal history. Windham’s life was picked apart in the closest of detail, with the seventeen poached eggs he ate for breakfast and his obsession with trains called into question.

A jury found by a majority that Windham was of sound mind, although seven of the twenty-three did consider him to be mad. Windham was ordered to pay the costs of the trial, as the petition had been brought in good faith, which is a principle that still applies today.

Over the following century, there were developments in the power that the Masters in Lunacy had and the way in which they administered their work. By 1947, there was an Office of the Masters of Lunacy which was well established and constituted an office of the Supreme Court. It was in 1947 that the Office was renamed the Court of Protection.

Although the Court of Protection progressed significantly from the days of the Office of Lunacy, it remained limited in its power and ability to protect the vulnerable in society. A key reason for the inability of the Court of Protection to operate effectively was that there was a significant separation between the structures for welfare and financial matters. Financial matters were largely dealt with by civil servants on behalf of the Master in administrative arms of the Court of Protection. However, welfare decisions could only be made in the High Court. This was expensive and complicated and excluded all but the most exceptional of cases. The result of this was that the most vulnerable people in society were increasingly disconnected from the justice system, and this was a situation that could not continue.

The Significance of the Mental Capacity Act (2005)

In 2005, the Mental Capacity Act (MCA) was introduced as a way of protecting vulnerable people who are unable to make decisions on their own behalf. The five principles of the MCA 2005 are the foundation for all work carried out by Court of Protection teams, and they are:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The MCA 2005 created the new Court of Protection and the Office of the Public Guardian, with the aim of creating “a unified jurisdiction, combining that of the old Court of Protection in relation to property and financial affairs with the personal welfare jurisdiction exercised by the High Court judges of the Family Division.”

The Court of Protection as created by the MCA 2005 is a specialist court of record with the same rights, privileges and authority as the High Court. It now has the power to make specific decisions, or appoint others (deputies) to make decisions, for people who do not have the capacity to make decisions for themselves. These decisions could be in relation to property, financial affairs, health and personal welfare.

The Court of Protection Today

After an initial period of transition, the Court of Protection is now well established and provides security to an increasing number of vulnerable people. The improved structure of the Court combined with an increased awareness and understanding of the importance of protecting vulnerable people in society has meant that there has been a significant increase in the work of the Court of Protection and of Court of Protection departments across the country. In 2012 alone there were 23, 538 applications to the court with 22,797 orders made. The orders made by the Court of Protection can be made on any number of issues, from investing an individual’s funds to deciding whether or not a statutory will can be made.

So from the Lunacy Office to the Court of Protection, the progress continues and the Court is able to effectively protect an increasing number of vulnerable people every day.

With thanks to Senior Judge Denzil Lush for his insightful and informative contributions which have been incorporated into this article.

Terrell, M. 2009. A Practitioner’s Guide to the Court of Protection. 3rd Edition. Chapter 2 – The New Court of Protection.

Re MB [2005] EWCA Civ 1293 – found at

https://www.lawtel.com/UK/FullText/AC0109786CA(CivDiv).pdf

Lush, D. 1998. ‘The Windham Inquisition’ – an article written for the Legal Executive Journal

Lush, D (as n.3 above)

Re MB [2005] EWCA Civ 1293 (as n.2 above)

Terrell, M. (as n.1 above)

Terrell, M. (as n.1 above)

 The Mental Capacity Act 2005

 Court of Protection Report 2009. Judiciary of England and Wales. Foreword by Senior Judge Denzil Lush

Figures taken from ‘An Introduction to the Court of Protection’, MBL Seminar presented by Claire van Overdijk. Original figures taken from –

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217494/judicial-court-stats-2011.pdf

If only...

If only I had somehow managed to persuade my beloved mum to sign a Lasting Power of Attorney (LPA), I would not have spent the last three years of my life, becoming a lay expert on the Court of Protection.

I count myself fortunate and privileged to work in the field of acquired brain injury. Because of my work, I probably have more knowledge and understanding than the average person who at some point, has to consider the needs of their ageing parents. We never think we may need to consider issues of mental capacity, LPA and the Court of Protection for our own loved ones.

Even the extra knowledge and understanding I have, could not have prepared me for the minefield that lay ahead when my dear mum was Sectioned under the Mental Capacity Act and taken into care due to her diminishing capacity as a result of dementia. Her lack of capacity meant that this once highly intelligent woman, now lacked the insight to see that she could no longer care for herself, let alone the needs of my terminally ill father, who was declining week by week due to a rare stomach tumour.

My father, with some explanation, signed LPAs seven months before he passed away, giving my sister and I complete power, if needed, for both his financial and health & well-being needs. Although we never really had to manage his financial affairs as such, the LPA made things so much easier when it came to those final hours, and knowing in advance exactly what he wanted to happen.

Once mum went into care in April 2012, we started the tortuous dealings with the Court of Protection, so that we could manage her finances and make sure that her health and well-being needs were being met.

We made the application to the court in May 2012. Copious amounts of forms needed to be completed by hand (no online forms for families to access) and a fee of £400 that I had to find because at this point we had no access to her bank.

Due to various administration failings by the Court of Protection, resulting in many hours of phone calls and numerous emails, we finally received an order from the court on 6th December 2012 appointing myself, my sister and my father as deputies, 7 months after submitting in the initial application forms.

In the interim we had accrued over £25,000 of costs, mostly care costs and the purchase of personal items and clothing for mum, all from our own finances (and we are by no means wealthy people!). With the order in place, we could now apply to the banks to access to mum’s finances.

Sadly, just three weeks after the order was made to appoint us as deputies, my father passed away. As well as having to deal with the grief of losing a much loved parent, once again we had to make an application to the Court of Protection to amend the original order for deputyship. This took a further two months to come through. By now, it was almost a year since mum had been taken in to care.

We soon learnt that banks do not know of or understand about Court of Protection orders. They have whole departments who look after clients with LPA’s, but know nothing about the Court of Protection – I can’t remember how many times I ended up in tears of frustration just trying to get accounts set up. We finally had access to funds and could pay mum’s bills in August 2013, some 16 months after she first went into care.

It’s now eighteen months since our father passed away, we are ready to sell our family home but once again we must pay a further £400 to apply to the Court of Protection for permission to sell it, as 50% of the property belongs to mum.

You’d hope that this next phase of selling the family home would end our need to apply to the Court of Protection. Sadly it does not, due to an error in mum’s Will, made in 1991, 50% of her estate (which she wanted to go to her grandchildren) will fall into an intestacy (and not be distributed by her Will) when she passes away. As a result, we have spent almost a year trying to get a statutory Will in place, via the Court of Protection, spending approximately £6,000 on legal and court fees in the process; most recently, having to appoint a barrister to represent us at a Court of Protection hearing, an additional cost of £1,500.

The other surprise is that where there is no LPA in place, another government organisation must be involved, alongside the Court of Protection – the Office of the Public Guardian (OPG). The OPG are there to oversee and “support” lay deputies. This requires a further annual payment of around £350 and imposes the duty to produce annual reports on mum’s financial income and expenditure, with a narrative of key decisions that the deputies have made during the year. More time, which you just don’t have, when you have a relative in care.

This journey is far from over but would have been so different and so much easier if only we had got Mum to sign an LPA before she lost capacity.

(Contribution by Helen from Cheltenham)

Changes to the Intestacy Rules - is it time for a Statutory Will?

If you die without having made a Will, the Intestacy Rules are the legal framework which determines who will inherit your estate. These rules have recently been updated, but are still ‘one size fits all’.  The reality is that modern families come in all shapes and sizes, and these rules will not be appropriate for everyone. If you have not made a Will, then you should consider the new rules. If they do not give effect to how you want your estate to be left, then you can contact Caroline Wallis of this firm for a quotation and an appointment.

For people with mental capacity issues, they may not pass the legal test for being able to understand what making a Will entails. If you have a family member who you do not think would be capable of making a new Will, then you should consider the recent changes in the law and whether the Intestacy Rules are now appropriate for that person. If not, then it is possible to apply to the Court of Protection, to make a Will on their behalf that better suits their wishes, beliefs and family circumstances. This is called a Statutory Will, and it is overseen by the Court of Protection, to ensure that the terms of the Will are in the person’s best interests and comply with their prior wishes and values.

The Inheritance and Trustees’ Powers Act 2014 came into force on 1 October 2014.  The major changes where a person dies without a Will are:

  1. Where a husband and wife, or civil partners, have no children, then all of the person’s assets will pass to the surviving spouse or civil partner. Their wider family members will receive nothing.
    Previously the spouse or civil partner would have received the first £450,000, their personal belongings and half the value of anything else in the estate. The other half would have passed to their other relatives in a strict pecking order. This change appears to treat married couples or those in a civil partnership more fairly.
  2. Where a husband and wife, or civil partners, do have children, then the surviving spouse or civil partner will now receive the first £250,000 of the Estate, their personal belongings and half of the remaining assets to do with as they wish. The other half passes to their children in equal shares, or is held for the children in a trust until they reach the age of 18.
    Previously, the surviving spouse or civil partner would have still received the £250,000 and the personal belongings. However, they would have only received an income from half of the remaining balance, with no right to access the capital. On the second spouse’s death, this income-producing fund would pass to the children. There had been the option to apply for a conversion of this right to income into a capital payment, so it is good to see that these complex provisions have now been abolished.

Whilst these rules are slightly easier to apply, they may still create complications for married couples and civil partners who have not made a Will, and who have children. Many people assume that the surviving spouse or civil partner will get everything, but that is not necessarily so.

It is also important to note that this marginal improvement in the Intestacy Rules provides no protection for unmarried couples – they will still receive nothing from their partner’s estate, if they die without making a Will. Likewise, no provision has been made for step-children.

A day in the life...Ruth Meyer, Court of Protection Solicitor

No two days are the same! This one started at 8.31am with a three inch thick bundle of post and an inbox full of emails to get through.

By mid-morning I had met with one of the banks that manages thirty ruth-meterof our clients’ accounts to discuss their monthly charges. The amount that they want us to pay wasn’t unreasonable and I agreed that they could charge it as long as their system runs smoothly – and we get the financial information that we want, in the format that we ask for. This should, in theory, make it much quicker and therefore cheaper to manage client affairs, which in turn should enable us to help more clients, which means that banking costs will be reduced further. A real win-win situation all round.

My next meeting was with a Trustee regarding the adaptation work on a property bought for a five year old. The house cost just over £800,000 and the adaptations have initially come in at close to £1 million! Some of these are due to the family’s own needs but the majority are to help the child. Most of the meeting was spent on agreeing how the costs were to be divided as well as the best way to get the work paid for. As the case hasn’t been settled (liability has been admitted though) it may be some time before we get the balance of the compensation money which means that we are seeing if it is possible for the Trust and the family to obtain a joint mortgage to carry out the initial work.

The final meeting of the day was spent with the mum of one of the young adults that I act as Deputy for – who needed to get some paperwork witnessed. I have known the family for well over ten years and, unfortunately, her husband recently died at only 53 – after 20 years of marriage. We spent a good hour talking about how she was dealing with family life in general and the stresses and strains of now, in effect, being both mum and dad to her son. The mum was clearly finding this difficult, but I made sure that she knew that we would help out wherever and in whatever we could whilst of course making sure that the best possible carers were in place for her son. Just another part of the service we provide.

The rest of the afternoon was spent wading through a 30 page financial investment report. We currently have a large Trust in place which requires the removal of one of the financial advisors. The “beauty parade” that we are holding means reading through lengthy proposals from a short list of financial advisors before interviewing them. What it will come down to in the end – given that charges are usually pretty similar – is getting the match between the personality of financial advisor and the family spot on. Most of the Trusts that I deal with are set up when the child is quite young and are going to be in place for a long time. This makes a good match essential. The family need to be confident and, above all, like the person that they are going to be dealing with. Also, in many of the cases, the child is also able to build up a relationship with the financial advisor and therefore also needs to have confidence in being able to approach them and speak to them about their own investments.

At 6.36pm I turned off my PC and cycled home. Today has certainly been very varied, but I guess that’s what makes my job such an interesting one!

Boyes Turner strengthen Court of Protection service - Anne Pearson joins from Harris Cartier

Anne Pearson has joined Boyes Turner’s Court of Protection team which provides a Professional Deputy service and also advises families on deputyship issues. The team specialises in setting up compensation trusts for children and adults suffering from medical negligence and personal injury accidents as well as administering trusts for families to protect assets and preserve state benefits. It is led by Ruth Meyer and is one the leading specialist team of its type in the UK and the market leader in the Thames Valley.

Anne arrives from Harris Cartier (recently placed into administration) where she spent nearly 20 years most recently as a senior manager in its Court of Protection team. She has a background in nursing and many years experience in assisting on catastrophic personal injury cases, including spinal injury and brain injury, giving her a unique insight into the requirements and anxieties faced by both the clients and their families following a life changing accident and a loss of capacity.

Ruth Meyer comments:

“Experienced Court of Protection lawyers are few and far between. Anne joins us with an established practice which includes a full range of Court of Protection work from general day to day management, applications to the Court, Statutory Wills and contentious litigation as well as family proceedings. She also deals with property purchases and adaptations, employing support workers and carers, liaising with case managers, independent financial advisers, accountants, architects, quantity surveyors and builders. Anne will be working particularly closely with the firm’s claims services – Medical Negligence claims led by Adrian Desmond and Personal Injury claims led by Kim Smerdon. She is an excellent addition to the team and will further strengthen our national reputation.”

Anne Pearson comments:

“I am very pleased to be joining Boyes Turner and particularly looking forward to working with Ruth Meyer and her excellent Court of Protection team. Being part of such a good team is not only an excellent opportunity for me but also for the clients.”

Anne Pearson can be contacted via email on apearson@boyesturner.com or 0118 952 7187.

This appointment comes at a particularly notable time for Boyes Turner which was once again ranked as the largest law firm in the Thames Valley by The Lawyer Magazine (in its review of the UK’s 200 largest law firms) and also the UK Regional Law Firm of the Year (British Legal Awards).

A Will or Trust could have saved the situation...

recent story on the BBC News, regarding a man who was jailed for sharing his father’s industrial compensation, brought home the stark reality of how easily the situation could have been avoided just through seeking wealth protection advice.

John Kennedy’s father died of asbestosis in 2001 and after his death he shared the compensation with family members in accordance with his father’s spoken wishes. No Will or specialised Industrial Disease Trust was left.

Before his father’s death, John’s mother was admitted to a care home and, as the family had limited savings, her care was funded by the Local Authority.

In 2005 £90,000 was paid in compensation for the industrial injury and, as there was no Will or Industrial Disease Trust, all of the funds should have passed to John’s mother under an intestacy. These rules state where your money should go if you do not leave a Will.

However John, with good intentions, decided to honour his father’s wishes and effectively took charge of the decision as he held a Power of Attorney for his mother. After a family meeting it was decided to share the money between various family members.

Unknowingly these actions led to devastating consequences and John was charged with benefit fraud, as the money should have passed to his mother to help pay for her nursing care. John was convicted and sentenced to nine months in prison suspended for two years. However, as he was unable to pay the money, which had been spent, he was jailed and served four months in prison. John’s criminal record has now affected his employment prospects and each month he has to pay a nominal sum from his benefits towards his outstanding debt.

Since then, due to his mother’s health, the family successfully applied for the nursing home fees to be met by the NHS as she qualified for continuing health care and if they had seen a solicitor about this in the first instance then John may never have been charged over the incident.

The final outcome for John could have been avoided by any of the following:

  • John’s father could have made a Will leaving his assets (even future assets) in the way that he would have wanted. That way he would not have been bound by the intestacy rules.
  • John’s father could have set up an Industrial Disease Trust before he died asking for funds in the future to be placed in Trust and be divided how his chosen Trustees saw fit. A private Letter of Wishes from John’s father to the Trustees would have guided them and the Trust could have been set up with a £10 loan which would then be repaid when the funds finally came through. This is more complicated than a Will but allows Trustees to distribute in the proportions they see fit at that time rather than set amounts under a Will.
  • The family should have taken advice about the continuing health care funding for John’s mother although health requirements usually have to be quite advanced for this to be granted.

It is understandable that families, where a member has been diagnosed with asbestosis, may not want to have to consider these issues at times of great family stress. However, speaking to a lawyer a little earlier would have avoided the difficult position that John found himself in, probably the last thing that his father would have wanted or anticipated.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Claims client

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