Law and the Older Person

The law is an arbitrary beast
Dogmatic in it's choice
Far better then that YOU DECIDE
While still you have a voice

The 39 Bus and how to avoid being a victim of circumstance!

So how do we define the older person? Realistically we are talking about anyone over the age of 18. This is the age at which you can:

You may feel the need for a will or an enduring power of attorney is many years away and thankfully, for most of us, it is. None of us know, however, when we may fall ill, be involved in a car crash or fall under the 39 bus. As with a pension it makes sense to plan ahead. To paraphrase Catch 22; don't be a victim of circumstance.

This section of our website applies to anyone old enough to vote and who has friends, loved ones or family who they would want to care for them or provide for should circumstances require.

We offer advice and assistance on:

Why should you make a will?

You are in pretty good company if you don't. At the last count over 80% of the population didn't have one. We reckon though you have probably worked pretty hard for what you have and would like to have some say over who should inherit it after you have gone.

If you don't make a will then your estate is dealt with under the intestacy rules*, which could mean it all goes to that cousin of yours who lives in Coventry and whom you loathe!

If you don't make a will who will care for your minor children after the death of you and your spouse?

If you don't make a will and you are not married then your partner will not inherit anything. (Unless they apply to the court for a share of your estate.) They have no legal right to make your funeral arrangements.

Making a will

Your will should be a flexible document, so that if circumstances change through the death of an executor or a beneficiary or the disposal of a particular item of property it is not necessary to change your will. These problems can be easily avoided by

A will normally contains the following components:

Executors and testamentary guardians

Your executors are responsible for dealing with your financial affairs after your death. The purpose of testamentary guardians is to have some one who will care for any of your children who are minors (under the age of 18) after the death of yourself and your spouse. Those suitable to look after your money may not always be the same as those most suited to look after your children and visa versa.

Specific gifts
Generally this will be individual items such as "all my jewellery" or "a gift of £1,000". It is better to dispose of large parts of your estate in the gift of residue

Residuary estate
This is a 'sweeping up' clause whereby any of your estate not specifically disposed of ("the residue") is dealt with. In most cases testators deal with the bulk of their estate in this manner. Without such a clause you may leave some of your property un-disposed of, this is known as a partial intestacy. If your residuary estate is being divided amongst several people, care needs to be taken to over the drafting of this clause to prevent a partial intestacy arising should one of the beneficiaries die before you.

Substitutional beneficiaries
If your residuary estate is left to a single person then it is a good idea to name a substitute in case the original beneficiary dies before you.

Trust provisions for minors
We take the view that it is a bad idea to allow children to inherit a large amount of money at an early age as they will probably spend it. Far better to keep a residuary estate, which is passing to children, in trust until they reach 21 or 25. These trusts are normally drawn so funds can be used for the child's maintenance and schooling and also for the purchase of property but the money cannot be squandered.

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Enduring Power of Attorney

THE BEST TIME TO MAKE AN ENDURING POWER OF ATTORNEY
IS WHEN YOU DON'T NEED TO

The purpose of this document is to allow someone YOU have chosen to manage your financial affairs if you do not have the mental capacity to do so.

Lack of mental capacity can arise due to illness as well as old age.

An ordinary power of attorney or any other authority which you may have given to someone to manage your affairs ceases to have effect if you lose mental capacity.

In order to make an enduring power of attorney you must understand the nature of the document and the effect of signing it. This requires mental capacity, which can loosely be defined as; 'the ability to understand the nature and effect of the acts and deeds you commit'.

It's a bit Catch 22 isn't it? You only need an enduring power of attorney when you have lost your mental capacity. Once this has happened, you can't make an enduring power of attorney, as you don't have the mental capacity to do so.

In many cases, the loss of mental capacity is a gradual affair (this may not be the case in the event of an accident or illness) and therefore you may still be able to grant an enduring power of attorney. It's far better however to make the power when you are in full possession of all your faculties and you can give full and proper consideration to what you are doing without the looming recognition of your own frailty.

The mere fact you have signed such a document does not mean your attorney can instantly start acting under it. We recommend that you retain the power until it is needed or that it is lodged with ourselves. We would only release it on receipt of evidence that it was genuinely needed.

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