QUESTIONS FOR
FAMILY MEMBERS OR LOVED ONES

Nobody likes to think about a parent or loved one getting older, becoming vulnerable or reaching the end of their life, but planning for the future is essential to ensure their wellbeing and security.

The best place to start to help them is with open and honest conversations about their wishes, preferences, and concerns regarding their future care and legal matters. You can help by educating yourself and your parent or relative about their rights, available services, and resources for vulnerable and older people. Having this knowledge will empower them to make well-informed decisions.

Encourage your parent or loved one to update their will if they have one, or put one in place if they don’t, to ensure their property and assets are distributed in accordance with their wishes on their death.

You should also discuss with them what would happen if they were to lose capacity to make their own decisions during their lifetime, either through physical ill health or because of a condition like dementia. In this event, having a Lasting Power of Attorney (LPA) in place allows them to entrust their affairs to named individuals (‘attorneys’), who are authorised to make important decisions on their behalf.

There are two types of LPA, one of which concerns decisions about property and finance, the other, decisions about health and welfare. Both types of LPA are extremely powerful legal documents, allowing attorney(s) to make important decisions about the management of property, bank accounts, and bill payments, and choices around care plans, medical treatment, and end of life wishes.

For decisions around property and financial affairs, an individual can activate their LPA before they lose capacity, so if your parent or loved one decides they no longer want to manage their own finances, despite being of sound mind still, they can pass this responsibility on to their attorney(s) immediately. For decisions around health and welfare, an LPA is only activated once the individual is deemed to have lost capacity. For more information on LPAs please click here.

Your parent or loved one will also need to consider their options for long-term care, including in-home care, assisted living, or nursing homes. You can help them research and discuss with them the associated costs and available financial support to help them make the best decision for them. They may need to consider a financial review as part of the estate planning process to ensure they have sufficient financial resources for their needs. They should consider consulting a financial adviser to help manage their finances effectively.

Whilst it’s a difficult topic, discussing with your parent or loved one their medical preferences, advance care directives, and end of life wishes will ensure that they have a comprehensive care plan in place. It will also ensure that you are aware of their wishes and the existence of relevant paperwork should they lose the ability to communicate their wishes effectively.

You can help your parent or loved one build a strong social support network with friends, family, and community resources to prevent isolation and loneliness. Make sure that you maintain regular contact with them to monitor their wellbeing and assess their changing needs. This will help you detect any signs of cognitive decline or health issues.

Remember that each person’s situation is unique, so it’s essential to tailor your approach to your parent or loved one’s specific needs and circumstances. Seeking professional advice and guidance from a member of the Association of Lifetime Lawyers, who are experienced in working with vulnerable and older clients, will enable you to navigate any legal complexities that may arise and to ensure that all legal documents are properly drafted and in compliance with relevant laws and guidelines, and can greatly assist you in helping your parent or loved one make informed decisions for their future wellbeing. To find a Lifetime Lawyer near you, head to our find a lawyer page.

Start by assessing the situation. If you suspect that your parent or loved one has lost capacity , seek medical advice to get a proper assessment of their mental and cognitive condition. This assessment can help determine their level of incapacity and guide the appropriate actions.

If a Lasting Power of Attorney (LPA) was previously set up, the appointed attorney(s ) can step in to make decisions on their behalf, as outlined in the LPA. If no LPA exists, you will need to consider applying for a deputyship through the Court of Protection to obtain legal authority to make decisions on their behalf.

Deputyship applications can be time-consuming, stressful, and expensive – potentially costing families thousands of pounds in legal and court fees. An application typically takes around four to six months to be approved by the Court but can take much longer. Meanwhile, decisions over an individual’s long-term care and finances are frozen. This is why we would always encourage people to plan ahead, to avoid causing additional distress and costs for your loved ones in the future.

To act as a deputy for your parent or loved one’s affairs, you must provide the Court of Protection with medical evidence of the loss of capacity, as well as lodging an extensive application and arranging the necessary insurance.

A member of the Association of Lifetime Lawyers can help you to gather the required documents and complete the forms correctly and can also act as a deputy if you prefer not to take on this role yourself.

When making decisions for someone who lacks capacity, you must act in their best interests, be this under an LPA or as a court appointed deputy. This involves considering their wishes, feelings, beliefs, and any past decisions they made when they had capacity. Wherever possible, involve the person in decisions to the extent that their capacity allows. Even if they can’t make complex decisions, their preferences and feelings should still be considered. You will need to continually review and assess their situation, needs, and wishes. Circumstances can change, and it’s important to adapt your decisions accordingly.

For decisions regarding someone’s medical and care decisions such as medical treatment, living arrangements, and care, you should involve health care professionals and care providers to make well-informed choices.

Make sure that you keep detailed records of the decisions you make, the reasons behind them, and any consultations with medical professionals or other experts. This helps demonstrate transparency and accountability.

Don’t forget to lean on family members, friends, and relevant organisations for support. Caring for someone who lacks capacity can be emotionally and mentally challenging, so seeking assistance is important.

Remember that acting in the best interests of someone who lacks capacity requires careful consideration and adherence to legal requirements. Seeking professional guidance from a Lifetime Lawyer and collaborating with health professionals will help ensure that you’re providing the highest level of care and support for your parent or loved one. To find a Lifetime Lawyer near you, head to our find a lawyer page.

 

If you are named as an attorney for a Lasting Power of Attorney (LPA), you are agreeing to act on the behalf of an individual (the ‘donor’) should they lose the mental capacity to make their own decisions, or (in the case of a property and financial affairs LPA) if they decide that they no longer want to handle some or all of their own affairs.

There are two types of LPA , one of which concerns decisions about property and finance, the other, decisions about health and welfare. Both types of LPA are extremely powerful legal documents, allowing you as an attorney to make important decisions about the management of the donor’s property, bank accounts, and bill payments, and choices around their care plans, medical treatment, and end of life wishes.

As an attorney appointed under a Lasting Power of Attorney (LPA) you have several important legal responsibilities. Your role involves making decisions on behalf of the person who granted you the authority (the donor), and these decisions must be made in accordance with the law and the person's best interests.

Your primary duty as an attorney is to act in the best interests of the donor. This involves considering their wishes, feelings, values, and any past statements or decisions they made when they had capacity. Whenever possible, involve the person in decisions to the extent that their capacity allows. Even if they can't make complex decisions, their preferences and feelings should still be considered.

Your decisions and actions must align with the instructions and limitations specified in the LPA; you cannot act beyond the scope of your authority. For instance, if you're appointed as a property and financial affairs attorney, you can't make decisions about the donor’s health and welfare.

You must avoid any situation where your personal interests could conflict with the best interests of the donor. This includes managing their finances separately from your own and not benefitting personally from your decisions. When acting as an attorney you must do so in good faith, carrying out your duties with honesty, integrity, and a genuine commitment to promoting the wellbeing of the person who granted the LPA.

If you're authorised to manage the person's finances, handle their assets with care, keep clear financial records, and make prudent investment decisions.

When making significant decisions, especially those involving complex legal, financial, or medical matters, seek advice from relevant professionals, such as a member of the Association of Lifetime Lawyers, financial advisors, or medical experts.

Make sure you keep detailed records of the decisions you make, the reasons behind them, and any consultations with medical professionals or other experts.

It's important to recognise that being an attorney is a significant responsibility. You're entrusted with making crucial decisions for someone who may not be able to do so themselves. To fully understand and consider the implications of agreeing to act as an attorney, it is strongly recommended that you (along with the donor and any other attorneys) seek advice from a Lifetime Lawyer before making an LPA application. To find a Lifetime Lawyer near you, head to our find a lawyer page.

It is very common for people to require additional care as they get older, either within their own home or by moving into a care home. Funding care for an older or vulnerable person can be a complex process, and the options available will depend on various factors, including their financial situation and care needs.

Having a health and welfare Lasting Power of Attorney (LPA) in place ensures that you, as the attorney, can act upon your relative’s wishes or preferences around the care they receive, should they lose capacity . Without an LPA, it can be difficult for you to make decisions regarding the type, level, and quality of care your loved one receives.

If your relative for whom you are an attorney has lost capacity and has not outlined any preferences in their LPA, you will need to decide how their care will be funded. There is a cost attached to any care service, the level of which can vary depending on your relative’s individual circumstances. If they have personal savings, investments, or assets, these can be used to cover care expenses. It’s important to assess their financial situation and explore how their resources can be used.

Local authorities provide social care services, and your loved one might be eligible for financial support based on a means test. The local authority will assess their income, savings, and assets to determine if they qualify for assistance. If their income and assets are calculated by their local authority to be above a certain threshold, they will in most cases be expected to pay privately for their own care. The value of any property they own may be considered when calculating this threshold depending on their individual circumstances, such as whether they live alone or with a spouse or partner. Often, decisions need to be made about whether to sell or let the property, or whether to borrow money against its value from social services – this is called a deferred payment agreement and allows your loved one to defer paying the fees until a later date, usually when the property is sold, either in their lifetime or after their death.

If your loved one already has insurance or an annuity in place to provide regular payments to cover the cost of their care, you can explore how they can be used effectively. If they don’t already have such a policy, it may still be possible to obtain one when they go into care. For homeowners, it would be worth considering equity release which would allow them to access the value of their property without selling it. This can provide a lump sum or regular income to cover care costs. You should obtain financial advice on the options available.

Often, a combination of the above options is used to cover care costs. It’s important to carefully evaluate the best approach based on your loved one’s unique circumstances.

If your loved on has significant health needs, they might be eligible for NHS continuing healthcare . This covers the full costs of care if the primary need is a health need rather than a social care need.

There are several benefits to which your loved one may be entitled, which can often still be claimed beyond the point at which they lose capacity, including Pension Credits, Attendance Allowance and bereavement benefits.

If you are providing any care for your relative as well as acting as their attorney, you may also be able to claim Carers Allowance.

Navigating the financial aspects of care for older and vulnerable people can be overwhelming. It's advisable to seek professional financial advice to understand the implications of different funding methods and to ensure that your relative's best interests are prioritised. Additionally, consulting with social services and a member of the Association of Lifetime Lawyers can provide valuable insights into available resources and legal considerations.

By putting an LPA in place ahead of time, your loved one can specify their preferences about these types of decisions. A Lifetime Lawyer can help you as a family to discuss the various options available, ensuring that everyone involved is fully informed and confident about any difficult decisions that may need to be made in the future. To find a Lifetime Lawyer near you, head to our find a lawyer page.

If your loved one has lost the mental capacity to make their own decisions but does not have a Lasting Power of Attorney (LPA) in place, the Court of Protection can assign a ‘deputy’ to deal with their affairs.

Whilst this deputyship is usually granted to a family member, if there is no suitable candidate within the family, the court can grant it to a professional, such as a solicitor. When a professional deputy is appointed for an older or vulnerable person, it means that someone with expertise in legal and financial matters has been authorised by the Court of Protection to make decisions on their behalf. The authority of a deputy can cover financial and/or health and welfare matters, depending on what the court has determined to be necessary.

Like any deputy, a professional deputy must ensure that any decisions they make are in the best interests of the person for whom they are acting which involves making decisions that align with the person’s past and present wishes, feelings, beliefs, and values. They can only make decisions as allowed by the court. The deputy cannot make a will on behalf of the person who lacks capacity, other than by a Court application (called a ‘statutory will’ ) and they cannot transfer property or large sums of money into their own name.

If they are appointed as a property and financial affairs deputy, they have the authority to manage the person’s financial affairs. This includes handling bank accounts, paying bills, managing investments, and making financial decisions. If they are appointed as a health and welfare deputy, they can make decisions about medical treatment, care arrangements, and other aspects of their wellbeing.

Professional deputies are required to submit annual reports to the court detailing the decisions they’ve made, the rationale behind those decisions, and the overall situation of the person they are representing. This is to ensure transparency and accountability. The court may periodically review the professional deputy's role to ensure that they are acting appropriately and in the best interests of the individual. This helps maintain the person's wellbeing and protects their rights.

The appointed deputy will need to make detailed accounts of your relative’s affairs, a process that can be extremely time-consuming for your whole family. To avoid the stress and hassle of the involvement of a professional deputy, the best course of action is to seek advice from a member of the Association of Lifetime Lawyers who can help your relative to create a legally robust LPA before the point at which they lose capacity. To find a Lifetime Lawyer near you, head to our find a lawyer page.

If you’ve been named as an executor in a will, it’s essential to understand your responsibilities and what steps you need to take. As an executor, you’re responsible for dealing with the estate of the deceased person (i.e. all their property and financial assets) and distributing it to the beneficiaries named in the will.

Firstly, it’s important to note that you don’t have to act as an executor if you don’t want to. You can either give up your right to act as executor permanently by renouncing or you can appoint someone else as an attorney to act on your behalf. More information of renouncing can be found on the government website.

If you do decide to take on your role as executor, you’ll need to start by locating the deceased’s original will. It may be with their lawyer, at their home, or in a safe deposit box at their bank. Ensure that you have the original, signed version.

You will need to register the death at a register office . You can contact any register office, but it will be quicker if you use the one in the area where the person died. The register office will tell you what you need to do when you contact them, including which documents you’ll need to bring with you.

Once you’ve registered the death, you’ll get a certificate for burial or cremation (the “green form”) which gives you permission for a burial or to apply for a cremation. You’ll also be able to buy copies of the death certificate which proves the death has been registered.

If the death was unexpected and the cause of death is unknown, sudden, or unexplained, it may be reported to the coroner. The coroner will give you the documents you need, or they’ll send them direct to the register office. If there’s no inquest, you’ll be able to buy death certificates after you’ve registered the death. If an inquest is required, then you’ll receive an interim death certificate, and the full death certificate will be issued once the inquest is concluded.

Once the death has been registered, you’ll need to find all the financial documentation belonging to the person who has died and create a comprehensive list of their assets and liabilities. This includes bank accounts, investments, property, debts such as credit cards, and any other financial or tangible assets. You will also need to establish whether they held any digital assets such as bitcoin or cryptoassets.

You should send a copy of the death certificate to the organisations that hold their money and ask for confirmation of the value of the money held at the date of death as well as the amount of income received in the last tax year up to the date of death. The banks will freeze the accounts so that no one can take money out without the correct legal authority. You’ll also need to find out details of any money owned to the deceased or owed by them.

Once you have details about the deceased’s assets and liabilities, you’ll be able to calculate the value of the estate by deducting the assets from the liabilities , complete the inheritance tax paperwork, work out the inheritance tax due, and arrange to pay it.

If the estate includes substantial assets or property, you may need to apply for a grant of probate . This legal document gives you the authority to administer the estate. If the estate is small or straightforward, probate may not be necessary.

Once the grant has issued you can collect in money belonging to the estate from banks, insurance companies, pension funds, and building societies, and sell or transfer properties that form part of the estate.

After this you’ll need to pay debts, expenses, and liabilities, such as lawyers’ fees, and the balance of any inheritance tax due.

If it appears there are not enough assets in the estate to cover the outstanding tax, expenses, bills, and other liabilities the estate will be classed as insolvent, and you should seek the advice of a lawyer. Administering an insolvent estate can be very complicated.

You should inform the beneficiaries named in the will about their entitlements and keep them updated on the process of the estate administration.

Once you’ve collected in the assets and paid the liabilities and debts, you can distribute the estate to the beneficiaries according to the instructions in the will. Make sure you keep detailed records of all financial transactions and communications related to the estate. This will be crucial if any questions or disputes arise later.

You will need to prepare estate accounts showing all income, expenses, and distributions. These accounts may need to be approved by the beneficiaries, and in some cases, submitted to the court.

Once you’ve ensured that all legal formalities have been complied with, including filing tax returns, and notifying the relevant authorities, you can wind up the administration of the estate. They may involve obtaining a clearance certificate from HM Revenue and Customs in respect of inheritance tax.

If you’re unsure about any aspect of your role as an executor, it’s wise to seek legal and/or financial advice. Executors can be held personally liable for mistakes or mishandling of the estate, which could lead to [please include what? Fines?]

Remember that being an executor is a significant responsibility, and the specific steps you need to take can vary depending on the complexity of the estate. It’s advisable to consult a member of the Association of Lifetime Lawyers to guide you through the process. To find a Lifetime Lawyer near you, head to our find a lawyer page.

It is not a legal requirement to use a lawyer for probate , but it can be highly beneficial to do so, especially when dealing with complex estates. To help you decide whether you need to consult a lawyer, here are some things to take into consideration:

• If the estate is straightforward with minimal assets, debts, and beneficiaries, you may be able to handle administering the estate and applying for probate, if necessary, without legal assistance. However, if the estate is complex, involves multiple assets, or has potential disputes among beneficiaries, a lawyer's expertise can be invaluable.
• Probate involves various legal and financial aspects, including asset valuation, tax calculations, and navigating the legal requirements. A lawyer is trained to handle these intricacies, ensuring that everything is done correctly and efficiently.
• Dealing with probate can be time-consuming and emotionally challenging, especially when grieving the loss of a loved one. A lawyer can alleviate some of this stress by managing the process on your behalf.
• Probate mistakes can lead to delays and legal complications. A lawyer's experience reduces the risk of errors and ensures compliance with all legal requirements.
• If there is potential for disputes among beneficiaries, having a lawyer involved can help mediate and resolve conflicts to prevent legal battles.
• Executors have a legal duty to administer the estate correctly. If errors or omissions occur, you may be held personally liable. Using a lawyer provides a layer of protection in this regard.
• Lawyers are experienced in probate procedures and can typically complete the process more efficiently than someone without legal training.
• In some cases, obtaining a Grant of Probate may require legal representation, especially if there are issues with the Will or other complications.

Ultimately, the decision to use a lawyer for probate depends on the individual circumstances of the estate and the comfort level of the executor . Contact a member of the Association of Lifetime Lawyers to discuss your specific situation and determine whether legal assistance is necessary or recommended.

When a person dies without leaving a will, it is referred to as dying "intestate ". The estate (property, financial assets and liabilities) of the person who has died will be dealt with in accordance with the intestacy rules.

The first step is to identify the deceased person's closest living relatives, such as a spouse, children, parents, or siblings. These individuals are typically the beneficiaries of the estate, though certain classes of beneficiaries take priority over others [INSERT LINK TO FURTHER GUIDANCE].

In the absence of a will, the person entitled to deal with the estate under the intestacy rules (“the administrator”) will need to apply for a grant of letters of administration from the Probate Registry. This document grants them legal authority to manage and distribute the deceased person's assets.

Prior to making the application for the grant of letters of administration, the administrator will need to create a comprehensive list of the deceased person's assets, including property, bank accounts, investments, and personal possessions, as well as any outstanding debts, including funeral expenses, loans, and other liabilities.

Once you have details about the deceased’s assets and liabilities, you’ll be able to calculate the value of the estate by deducting the assets from the liabilities, complete the inheritance tax paperwork, work out the inheritance tax due, and arrange to pay it.

After debts and taxes are settled, the remaining assets are distributed among the beneficiaries as set out in the intestacy rules. These laws prioritise spouses, civil partners, and close family members.

You should inform the beneficiaries about their entitlements before applying for the grant of letters of administration and keep them updated on the process of the estate administration.

The administrator of the estate won’t be entitled to charge for their services but will be able to reclaim out of pocket expenses before distributing the estate.

Throughout the process, various legal requirements and deadlines must be met. It's essential to comply with these regulations to avoid delays and legal issues.

Once you’ve ensured that all legal formalities have been complied with, including filing tax returns, and notifying the relevant authorities, you can wind up the administration of the estate. They may involve obtaining a clearance certificate from HM Revenue and Customs in respect of inheritance tax.

If you’re unsure about any aspect of your role as an administrator, it’s wise to seek legal or financial advice. Administrators can be held personally liable for mistakes or mishandling of the estate.

Remember that being an administrator is a significant responsibility, and the specific steps you need to take can vary depending on the complexity of the estate. It’s advisable to consult a member of the Association of Lifetime Lawyers to guide you through the process. To find a Lifetime Lawyer near you, head to our find a lawyer page..

 

An intestate estate refers to the estate of a deceased person who has passed away without leaving a valid will or any legally recognised instructions regarding the distribution of their assets and possessions.

When someone dies intestate, the intestacy rules determine how their estate will be distributed among their heirs and beneficiaries and can be summarised as follows:

• If the deceased person is survived by a spouse or civil partner, and there are no children, grandchildren, or great-grandchildren, the entire estate passes to the surviving spouse or civil partner.
• If the deceased person is survived by a spouse or civil partner and descendants (children, grandchildren, or great-grandchildren, including adopted children and their descendants), the spouse or civil partner inherits:
  • All the personal belongings of the deceased person
  • The first £322,000 of the estate (for deaths on and after 26 July 2023).
  • Half of the remaining estate
The other half of the remaining estate is divided equally among the descendants, with children taking priority (if any children have predeceased then their own children will inherit in their place).
• If there is no surviving spouse or civil partner, the estate is distributed to the deceased person's descendants in equal shares, again with children taking priority.
• If there are no surviving spouse, civil partner, or descendants, the order of inheritance typically proceeds to the deceased person's parents, siblings, nieces, and nephews, and then to more distant relatives.
• If there are no surviving close relatives, the estate may pass to the Crown (known as "bona vacantia").

This is a simplified summary of the intestacy rules, and the actual application of these rules can be more complex depending on the specific family circumstances. It’s wise to consult a legal professional when dealing with an intestate estate to ensure that no beneficiaries entitled to inherit are inadvertently missed. A member of the Association of Lifetime Lawyers will be able to guide you on the process and how to locate family members if you’re unsure who survived the deceased. To find a Lifetime Lawyer near you, head to our find a lawyer page.