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Shared & Halved – IHL series: Making decisions about my family’s health and money

The impact of COVID-19

We understand how family and personal circumstances underpin everything else, and so this webinar discussed issues to do with health, money and moving home. The takeaway points from the webinar are set out below.

Documents to have in place

  • Increase in people putting Wills in place since the pandemic and we anticipate this continuing with a potential second spike on the horizon.
  • Your Will is a key document to make sure that your wishes are followed on death.
  • It is a common myth that everything passes to a surviving spouse, however, this depends on a number of factors - if you have children and your estate is above £270,000 that is not the case.
  • The other key documents are Lasting Powers of Attorney (LPAs).
  • We have had to be inventive in terms of taking Will instructions a different way via Zoom or through a window / patio door if necessary.
  • Given the circumstances recommendation is not to have face to face client meetings unless absolutely necessary.
  • Many people are tempted to make their own Wills and have found lots of useful information on Google and think their affairs are very simple. Technically it is possible to make a home-made Will but advice would be not to. The greatest number of claims are related to home-made Wills. It may seem straightforward but it isn’t.

Current issues in the property market

  • There have been many issues and it has been very difficult to move house. Only been able to do through the start of lockdown if the property was empty. Thankfully this has eased and estate agents are now back in business.
  • In the last couple of weeks we have seen the market coming back to life with matters that have effectively been on ice now proceeding and also with many new sales being agreed.
  • Surveyors and removal companies are also back in business but there are still difficulties and backlogs.
  • At the moment it may become harder for buyers to obtain mortgages - some lenders increased deposits needed for first time buyers by only offering 85% mortgages and withdrawing other products. Redundancies may mean mortgages are withdrawn so chains are riskier.

Practical issues in the property market

  • Range of practical issues which we have had to try to work around:
    • We have struggled to get chains to agree on completion dates as people still don’t want to commit too far ahead with completion dates or a party won’t agree to exchange and complete on the same day. 
    • The COVID-19 clause was drawn up to protect against the usual breach of contract remedy if completion delayed to give some leeway with delay but often one party won’t agree to this.
    • Difficulty with removal companies but thankfully are now working again and surveyors can now get access to properties to carry out surveys.
    • Getting documents signed and witnessed has been difficult but that has eased a bit now, more use of emails but still need original signed contracts.
    • Land registry have relaxed some requirements, for example will accept scans, and they are now working more fully again but there is a backlog.
    • Lots of estate agents are using online viewings initially - but this is a big leap of faith as usually want to visit the property before they can commit.
    • Viewings at properties can now be done but with PPE, social distancing, agents not allowed to attend, owners leaving the property for the viewing and thorough cleaning afterwards.

How to ensure family can make decisions about their finances and health in the future

  • Individuals with mental capacity can make key documents called Lasting Powers of Attorney (LPAs).
  • LPA’s can be an “insurance” in the event that you are unable to make decisions for yourself due to illness or incapacity or, it can be used for practical reasons, such as where you are physically unable to get to the bank/sign a document. Important to think about when have capacity.
  • There are two type of LPA’s:
    • Property and Affairs – this allows your Attorneys to make decision about your property and money; and
    • Health and Welfare – this allows your Attorneys to make decisions about your health and welfare and can include decisions such as, where you live, who you have contact with and if you choose, gives your Attorneys the authority to decide whether you receive life sustaining treatment or not.
  • An LPA allows the Donor (the person granting the power) to give authority to Attorneys (people of your choice) legal authority to make decisions on your behalf.
  • The LPA must be registered with the OPG before it can be used by the Attorney. This must be done or they are useless. They don’t need to be used straightaway but are there ready for when needed.
  • However, once registered and there are no restrictions on when your Attorneys can act, the LPA can be used by the Attorney to make decisions on your behalf whether you have mental capacity or not.
  • Practicalities to consider include:
    • Seek advice if wishing to include restrictions or specific guidance or if affairs complicated.
    • Think carefully about who you appoint as your Attorneys.
    • Make sure they can work together and have sufficient skill set to make the potential decisions that may need to be made.
    • Sensible to register immediately as opposed to deferring registration as take 8-10 weeks (longer in current COVID pandemic).
    • If you grant a LPA for health and welfare, bear in mind that medical practitioners can override Attorney’s decisions if they consider that the attorney is not acting in your best interests.
  • If the Donor has mental capacity they can revoke it and change the arrangements. If it has been registered then additional steps need to be made.
  • If the Donor has lost mental capacity and then the Attorney can’t act there may be sufficient arrangements within power to allow another individual to act. If sole/ joint power then the replacement can take over. But if no specific arrangements with in the power then it would be a case to apply to Court of Protection to be appointed as individuals Deputy.

If a relative has lost mental capacity through accident or illness before setting up an LPA

  • You can only grant an LPA if you have sufficient mental capacity.
  • If a relative has lost capacity then the first thing to do is the take practical steps to check to see if they have previously granted an LPA or potentially an older style Enduring Power of Attorney (EPA).
    • Check with family.
    • Amongst personal papers.
    • May be held by their solicitors.
    • Check OPG Register (this is only for powers that have been registered).
  • In the absence of a valid power of attorney, the alternative is to apply to the Court of Protection to ask to be appointed as a Deputy.

Grants of Probate

  • When someone dies there is a procedure to follow to get a Grant of Probate. We would normally expect a standard estate administration to take a minimum of 6 months. Usually from when applying for the Grant of Probate it takes 8 weeks but currently it is taking 12-16 weeks.
  • There are delays at every stage of the process right now –from the point where you initially need a death certificate through to valuing houses and up to applying for the Grant of Probate itself.

Property prices

  • Initially it looked like there might have been a dip and people thought they could chip at prices but at the moment my experience is that there is a pent up demand and the prices are in the main holding firm. Time will tell if this will continue.
  • 85% loan to value ratio brought in for first-time buyers which shows a nervousness for the market and where it is going to head.
  • We have also seen a trend for moves out of cities and more interest in rural village properties with land.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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