The rise in civil partnerships and why cohabitation agreements are more important than ever

Many cohabiting couples are still misinformed as to their legal rights and that a cohabitation agreement can help resolve this.

This article explores some of the misconceptions where cohabitation, civil partnerships and marriage is concerned. We discuss the importance of cohabitation agreements for those living together or in legally recognised civil partnerships and where a relationship problem results in the partners going their own way.

Society today is faced with many growing pressures and challenges, from the basic cost of living, changing working practices, evolving societal values, Brexit, Covid, global unrest, the list seems endless. The impact of each is unique to those experiencing it, with many experiencing some form of mental health impact as a result. The overall effect though, is the potential for pressure and stress within a family unit; a problem that can lead to relationship breakdowns and ultimately those involved finding out where their relationship stands legally and what rights they can expect in reality.

Common terminology and misconceptions

A survey carried out a few years ago by NatCen (a society research company), showed that around half of those surveyed thought that people living together in unmarried relationships, often referred to as ‘common law marriages’, had the same or similar rights to those in recognised marriages. This thinking underlines two important problems with how the legal rights of ‘cohabiting couples’ are understood.  The first is one of circumstance; too many people don’t understand the legal situation concerning ‘living together’ or ‘cohabiting’  and the jeopardy they may be in should a relationship fail. Secondly, there is too little awareness that this situation can be rectified by putting in place a suitable ‘cohabitation agreement’.

Common law marriage doesn’t exit in England and Wales

It’s a term often heard from those adults choosing to live together rather than opt for a legally recognised relationship. Unfortunately, living together or ‘cohabiting’ doesn’t grant any specific legal status to such couples and is not recognised in England and Wales. The same is true for Scotland, but there is provision for what’s referred to as an ‘irregular marriage’ and called ‘ marriage by cohabitation with habit and repute’ – this may apply to those couples who have lived together and believe they were in essence, married. However, Scotland’s laws are not considered here.

What are the differences between cohabitation and civil partnerships?

Cohabitation or living together.

With the busy and often complex lives we live today, it’s no wonder those that place no special value on more formal marriage proceedings, chose to live simply by just living together. There may be some intention in the future to ‘finally get married’, but the reality is, many people simply do not.

Between 1996 and 2020 the number of opposite-sex couples cohabiting grew from 1.5 million to around 3.4 million – that’s around 21% of couples cohabiting, up from 10% in 1996. Furthermore, in 2020 there were around 1.3 million cohabiting couples with dependent children.

The increase in same-sex couples cohabiting was considerably more dramatic. Although a smaller number, such relationships grew from 16,000 to 120,000 – that’s an increase of 650%.

Cohabitation affords no special rights, no matter how long a couple has lived together. Upon separation, there are no specific rights to share ownership of assets. The same is true for ongoing support and maintenance. This is true, even if one party chose to give up work to become the homemaker or look after any children involved. Naturally, this situation can lead to problems, potentially leaving one party extremely vulnerable.

If nearly half of these families believe incorrectly that they have the same or similar rights to those in recognised relationships, there’s a significant problem brewing should those relationships start to break down. At some point one of the parties will become aware that their situation is quite tenuous. This is why it’s incredibly important for couples living together to be aware of the legal situation they may find themselves in and take action by formalising their relationship is one of the ways outlined and available to them – civil partnership of marriage, or by drawing up a ‘cohabitation agreement’.

Civil partnerships

Introduced in 2005, civil partnerships provided legal recognition to couples in a same-sex relationship and affording them similar rights to married opposite sex couples. However this created an odd situation which meant that opposite sex couples had only a single choice in forming a recognised relationship, that of marriage. In 2019 civil partnerships were extended and now opposite sex couples can choose between a civil partnership or marriage.

Unlike a marriage formed by vows, a civil partnership is created by signing a contract – a civil partnership document. Civil partnerships can be ended through a process called ‘dissolution’ which is not that different from divorce.

Partners in a civil partnership share almost identical rights to those in a marriage in that upon separation financial considerations, inheritance, tax entitlements and estate assets all form part of the rights and obligations.

Again, it is often a mistaken belief that a civil partnership creates some for of common-law spouse. This is not true, a civil partnership is legally documented and recognised, whereas a common-law partnership is simply not recognised in England and Wales.

Differences between civil partnerships and marriages

A very useful explanation of the key differences between same-sex, opposite-sex, married, and civil partnerships can be found as a table from the government website. It outlines the key differences from an administrative perspective,  entering into a relationship, getting a relationship annulled, divorced or obtaining a dissolution. Also, it considers what happens to your state pension upon death or separation. Just follow the link here.

What is a cohabitation agreement and why is it important to have one?

cohabitation agreementNot every couple ‘living together’ will be ready to formalise their relationship, some may never do, but without some form of agreement between each other, not matter if it’s an opposite sex or same-sex marriage, each party is potentially vulnerable should the relationship breakdown. In short, there’s no legal requirement to support each other after separation. There’s no automatic share of ownership over savings, property, possessions, investments, etc. If you owned something prior to the relationship, you still own it. If you bought something together, there’s shared ownership based on contribution. Gifts are owned by those in receipt of the gift.

Particular issues arise around debt. For instance, debt on a joint credit card is the responsibility of both parties. If one party fails to pay, the other may also be pursued for the full amount. This is similarly true for other household debts. Some unfortunate partners find out after the fact that their partner has debt problems they failed to share with them, and where the debt was drawn from a credit card or bank account set up in joint names.

This is where a ‘Cohabitation Agreement’ becomes valuable. A cohabitation agreement is a form of contract that clearly outlines shared responsibilities and what happens to assets and debts upon separation and any contributions to be made by either partner.

Cohabitation agreements are very useful where children and property are involved, as they can specify the responsibility towards the children, or not, of each partner. Similarly, if one partner purchased a home, it can outline the rights of the other partner post separation, such as a share in its sale, or rights to continue to live there while they transition.

Interestingly, where children are involved, cohabiting couples are treated in a similar way to married couples, such as issues with childcare arrangements, who the children should live with, maintenance etc.

Death of a cohabiting partner

Unlike married partners, cohabiting partners have no automatic rights to inherit the estate of the deceased partner – unless they are specifically named as beneficiaries in a Will – another important reason to make a will!

You may make a claim on your partner’s estate if you can show you have lived together as ‘man and wife’ for at least two years and that you can prove you were financially dependent on them. This is true even if you are not named as a beneficiary in the will.

Your home may also be at risk if your partner dies, depending upon the form of legal ownership you had in place. If you owned the home as ‘joint tenants’, then you would continue to own the whole home. If however, you were ‘tenants in common’, the deceased partner’s share would fall within the scope of any will left.

State pension and benefits, such as the ‘Bereavement Support Payment’ will not be available to the surviving partner, meaning they could endure significant financial hardship at a time when they need it the most.

Things to consider before drawing up a cohabitation agreement

It might be useful at this point if you do wish to enter into a cohabitation agreement to think of your position as being married and how you’d want your assets divided should you die or become separated. Think of it a little like a will and a separation agreement. Your assets will likely include:

  • Your home or other property
  • Investments in stocks, shares, crypto currencies
  • Your pension(s)
  • Any savings you have between you or jointly.
  • Personal possessions, such as jewellery, hifi, cameras, computer equipment, furniture, cars.

Liabilities are a significant consideration too, even children could be considered a financial liability of one partner passes on, even though it may be a responsibility you’d welcome. Other liabilities and responsibilities may include:

  • Debts
  • Rent payments
  • Mortgage payments
  • Education fees
  • Hire purchase / lease agreements

It’s not a great way to spend a day planning for failure, but it is a reality a couple shouldn’t ignore. In short, enter this with your eyes fully open, imagine the circumstances should you decide to part ways or should one partner die – or even if both partners die, particularly if there are children involved.

List them all out in a spreadsheet prior to contacting a solicitor like Foys Solicitors. This will make the whole process flow a lot more smoothly. You may also ask the solicitor to help in valuing your assets.

Can I use a free cohabitation template available online?

You could, be beware though; while these templates may provide some flexibility, it’s important to remember that each relationship is unique, as are your circumstances. It’s tempting to use a ‘one size fits all’ type of template cohabitation agreement, but it’s best if it is created to accurately reflect the personal circumstances of your specific relationship. A solicitor expert in the intricacies of cohabitation agreements will help you create an agreement that matches your exact needs. This is especially important if you have considerable assets and if children are involved.

One last point to bear in mind. The cohabitation or ‘living together agreement’ should protect both your interests and reflect that which you both want to happen.

Finally, if you don’t have a will, either of you, arrange to have one drawn up as soon as possible. Foys Solicitors can assist with that too!

Are you cohabiting and want to protect your future rights? Talk to the experts at Foys Solicitors today.

Foys Solicitors have been practising family law in the Doncaster, Sheffield, and Rotherham areas for decades. We’ve assisted countless families through the best and worst of times. You can always guarantee a warm, receptive and sympathetic welcome when discussing personal issues as cohabitation agreements or if one doesn’t exist how we may assist resolve difficult and traumatic separation issues.

Call one of our family law team today at an office nearest you or on our main Doncaster office number: 01302 327 136 who will put you in contact with the most appropriate solicitor. Alternatively, reach out via our contact form.

Note: This article is intended as an awareness piece and does not constitute legal advice – always consult a solicitor before making important legal decisions.

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Family law solicitors today

Family law solicitors that put your family first

At Foys, our family law solicitors understand the importance of legal family matters and the sensitivities of family disputes, especially where children are involved. We are committed to ensuring the best outcome for you and your family.

Family law at Foys Solicitors consists of three main areas: matrimonial,  child matters and financial arrangements. Within this falls areas such as child abuse or neglect, divorce, domestic violence, children legal issues such as guardianship.

A more complete list can be found below and also in our family law services section.

Family law today

We live in unprecedented times. The daily pressure faced by families and individuals caused by lifestyle restrictions, peer pressure and economic uncertainty, has driven some to breaking point. Perhaps the most visible effect of this pressure has been in the growth of mental health issues within the younger age groups, although not exclusively so. With parents beset with their own problems, such as increased cost of living due to inflationary pressures and possibly employment issues, the additional pressure of problems with children can end up being the breaking point.

The most immediate impact of this may be found within spousal relationships. As tensions grow, relationships deteriorate, sometimes to the point of abuse or even domestic violence. 2020 and 2021 saw a considerable rise in domestic abuse and violence cases, as well as separations and divorce. Naturally, this can have an even bigger impact on the metal state of any children involved, often leading to their own bad behaviour at home, anti-social behaviour outside the home, depression and in the worst cases, suicide.

Family law solicitors at Foys Solicitors, are very aware of the social trends causing problems within families. While we may not be social welfare councillors, our goal when clients come to us, is to be as empathic and sympathetic as we can, and not project a cold legal face to the disputing couples. We also understand that reconciliation, a preferable outcome, isn’t always possible where family and matrimonial disputes are concerned. We’d like to see couples and their families resolve their differences amicably wherever possible, but whatever the requirement, clients can rest assured that we will work to achieve the best outcome for both parties possible.

Why would you consider using a family law solicitor?

Hopefully, most people won’t need the services of our family law team, as they will enjoy a happy and stable family life. However, cases of family disagreements, issues with family estates when a loved one has died, divorce, domestic abuse and child support issues have all seen considerable increases in recent times. The pandemic period saw a significant increase in domestic abuse cases that required sensitive treatment.

Many families will try to resolve matters themselves, which is obviously preferable. But in some cases, professional help is required and advised.  Often times, mediation is recommended, as this can avoid expensive legal cases between the parties concerned, as it allows each side to present their position and with the help of a skilled family mediator, hopefully come to a more agreeable outcome that avoids much of the unpleasantness and stress associated with full blown legal action. This is especially important where children are concerned as the disposition and demeanour of the parents during such a contentious and stressful time can have a serious negative impact on any children involved.

Family law matters require specialist assistance and a lot of empathy

Family law can be complex as it covers a wide range of legal issues that address different matters. Therefore, it is important to understand the details involved in order to ensure the outcome you desire. We understand the stress and confusion such issues may cause, therefore, our experienced family team takes a sensitive approach to help you understand the legalities. We will support you through the difficult times and on your journey to securing a better future for you and your loved ones.

Any family disagreement, divorce, or child guardianship matters are likely to be hugely stressful on the family concerned. It is always of prime focus to ensure that the parties involved are made to feel safe; your welfare comes first. This means that our family law practitioners would not look to create additional stress, treating both sides with sensitivity and empathy through the process.

Our family team can advise and assist you with the following:

  • Divorce
  • Collaborative law
  • Civil partnerships
  • Separation agreements
  • Premarital agreements
  • Cohabitation agreements
  • Financial matters
  • Domestic abuse and injunctions
  • Children’s legal matters
  • Change of name

For more information regarding how we can help you, check out our recently updated ‘Family Law Solicitors‘ page. Here, we dive deeper into the areas of family law that we cover.

Contact Foys Solicitors for sound advice on family law today

To book an initial free consultation or to find out more about our family law services, call Foys’ family law solicitors on 01302 327136 to book your FREE initial consultation. Alternatively, you can send us a message via our Contact Form.

Key and torn paper with text probate on wooden background

What does it mean to have a house in probate?

What does it mean to have a house in probate?

Start talking about Wills and you’re into the stuff of murder mysteries and legal thrillers. However, the truth is not nearly as glamorous and has far more paperwork.

When someone dies then their estate needs to be deal with. This means that their possessions from larger things like houses to smaller, more personal items will go to others. The legal process that allows this to happen is called probate.

Can probate be granted without a will?

Probate has to be applied for in the vast majority of cases, even if there is no will. Where the will does make a difference is around who will be responsible for valuing the estate and then carrying out the work of probate including selling property and dispersing the estate.

If there is a Will in place then the executors, the person or persons named to carry out the wishes of the deceased, will apply for probate or ask a solicitor to do so on their behalf.

However if the deceased had not made a will then probate regulations still apply. In this situation, their spouse, civil partner or children can become administrators of their estate and apply for probate.

There may be some incidences where probate is not required. For example, if the estate consists entirely of assets the deceased owned jointly with a spouse or civil partner, such as a house. Or if the estate is extremely small, less then £10,000, then probate may not be necessary. But bear in mind that banks and financial institutions will not release assets without proof that probate has been granted, and an estate of this size is unlikely to include property.

Do you have to pay taxes if you inherit a house?

No one is going to think that an inheritance sounds like a bad thing. You’re more likely to think kindly towards the deceased and make plans to enjoy what they have left you. But this might be less than you expect. Part of applying for probate includes assessing if the estate is at the threshold for inheritance tax. And if it is paying at least part of it to HMRC before probate is granted. As an executor or administrator, you can use any money the deceased held in a bank account to pay this or pay it yourself and claim it back at a later point.

Pay Inheritance Tax

The threshold Inheritance Tax is currently set at £325,000 with 40% paid on anything over this figure. This might sound like a huge amount until you take into account any property included in the estate. The average selling price for a detached house in Yorkshire is £272,754, according to Land Registry data, which is good way towards the threshold.

Recent reports also show that Yorkshire has the highest percentage rise in house asking prices in the country. At 8.1%, it even beats London who has seen more conservative rises. While a rise in price sounds good it’s worrying news for beneficiaries of Wills on two levels. There’s the Inheritance Tax issues raised above. But there’s also Capital Gains Tax to consider. A house that increases in price is subject to this upon sale. And if a house increases in value between the owner passing on and the property being sold then Capital Gains Tax will be applied. This will further reduce the amount of inheritance available.

And, of course, any income you acquire from the house after inheriting it, such as rental money, will have to be declared and Income Tax paid as appropriate.

And while it’s not a tax if you inherit a jointly owned property with a mortgage you’ll be liable for the mortgage payments.

What would happen if I died without a Will?

A popular idea is that the contents of a Will are top secret and will only be revealed at a reading thus causing maximum shock amongst those gathered. It’s actually a good idea to talk to your loved ones about your Will and the provisions you are making. This allows your executors to be clear about your wishes and how you want them to be carried out. It also allows them to understand the responsibility they are taking on and how the various processes work.

If you haven’t made a Will it might be because you think that you don’t need to. For example, you believe that your partner or children will automatically inherit your house. Or because you made one ages ago and didn’t see any need to update it. However, be aware that getting married or remarried invalidates a Will. And that partners do not stand to inherit unless the relationship has been formalised. It’s things like this that make it clear that getting advice from an expert like a solicitor does make a difference when it comes to legal matters. Estate planning is something everyone needs to consider whether you’re making a simple Will or looking at creating a trust. It will make life easier for your loved ones at a difficult time and is straight forward to do with our expert help.

Do you need to use a solicitor for probate?

Even if you decide to apply for probate on an estate by yourself you might want to get a solicitor involved once this has been granted. A solicitor will be able to help you navigate any tricky issues that might arise. Would you know how to deal with descendants who were left out of the Will and want to claim against the estate? Or what to do if the estate contained foreign assets? Or was insolvent?

A solicitor is well placed to help with these issues by applying their expertise in probate and particular issues in their geographic location. In rural areas, a business like a farm might still be generating taxable income while also being subject to Inheritance Tax. Similarly, rural properties may not be recorded at Land Registry requiring deeds to be located before the property can be sold. There’s no need to deal with a complicated or trying issue at a time of grief when you can rely on a professional.

In an ideal world, the solicitor who drew up the Will would be the one who also worked with the executors. But if this isn’t possible then choose another probate solicitor or accountant to support you.

Arrange a meeting to discuss your particular needs and talk about any concerns you have regarding the estate and how it is dealt with. It will also be an opportunity to consider how communication will take place and estimated time frames.

Pricing may also be a factor in who you choose to support you. Options are usually an hourly rate, fixed fee or percentage of the estate. Depending on how complex the estate is and what the value is may influence your choice. Foys offer fixed fee packages which you may want to investigate.

Inheriting property should be an exciting opportunity and the chance to remember the deceased with affection. It may not be a quick and easy process but the right support an awareness of the law there can be a satisfying outcome.

If you need legal advice regarding any aspects of probate, use our Online Form to contact our probate specialists.
Alternatively, contact your local Foys Solicitors office:

  • Doncaster – 01302 327 136
  • Retford – 01777 703 100
  • Worksop – 01909 500 511
  • Clowne – 01246 810 050
  • Rotherham – 01709 375 561
  • Sheffield (Waterthorpe) – 0114 251 1702
  • Sheffield (Chapeltown) – 0114 246 7609

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The top six things you need to know about deputyship

The top six things you need to know about deputyship

Deputyship is not a straightforward process and often requires the assistance of a legal expert.

A surprisingly large number of people assume that when they can’t make decisions for themselves, their spouse or children will automatically have the power to access their bank accounts, pay bills, sell the house to pay for care, plus making important decisions about their health and care. Unfortunately, it is not the case.

The laws on who can make decisions for you (in the event that you lack mental capacity to do so yourself) are clear – only your appointed people (known as your ‘attorneys’) stated in the lasting power of attorney documents can help you make decisions or to make decisions on your behalf. Despite the name, your attorneys do not have to be part of the legal profession – they can be your spouse, a trusted family member, a caring lifelong friend, and/or your adult child.

In the event that you haven’t yet appointed an attorney, then your spouse or a relative has to apply to become your deputy if you lack mental capacity. For instance, you have had an accidental slip and suffered a serious brain injury, or you have dementia and the disease is getting worse and affecting your ability to make decisions.

In this article, our protection of the elderly legal team looks at deputyship and the top six things you need to know about deputyship and how it differs from a lasting power of attorney.

1. Deputyship is authorised by the Court of Protection

Contrary to a lasting power of attorney, a deputy can only be authorised by the Court of Protection. When a loved one cannot make a decision for themselves at the time it needs to be made, and the person has not appointed an attorney, then their spouse or a relative has to apply to the Court of Protection to become a deputy.

The Court of Protection will review the case and give the deputy a court order which spells out what the deputy can or cannot do. For instance, the deputy must consider the level of mental capacity (of the person you’re a deputy for) every time you make a decision for them. It will be wrong to assume that the mental capacity is the same at all times and for all kinds of things, according to the Court of Protection.

When it comes to decision making, guidance for all deputies include:

  • Make sure it is in the person’s (whom you’re a deputy for) best interests.
  • Consider what they have done in the past.
  • Apply a high standard of care; this might mean involving other people, for example getting advice from relatives and professionals like doctors.
  • Do everything you can to help the other person understand the decision, for example, explain what is going to happen with the help of pictures or sign language.
  • Add the decisions to your annual report.

2. Two types of deputy

Similar to a lasting power of attorney, there are two types of deputy:

  • A property and financial affairs deputy can access your bank accounts, manage bills, and sell your property to pay for care.
  • A personal welfare deputy makes decisions about your medical treatment and how you should be looked after.

The court can appoint two or more deputies for the same person, or there could be more than one deputy. If there are multiple deputies, they must tell the court how the decisions will be made (either joint deputyship or jointly and severally).

Having said that, the court will usually only appoint a personal welfare deputy if:

  • There is doubt whether decisions will be made in someone’s best interests, for example when family members disagree about care.
  • Someone needs to be appointed to make decisions about a specific issue over time, for example where someone will live.

3. The application process is long

Appointing a lasting power of attorney usually takes between 8 to 10 weeks to register an LPA if there are no mistakes in the application. On the other hand, the application process to become a deputy often takes more than 3 months.

There are also several forms involved, including:

  • The main application form
  • Assessment of capacity
  • Supporting information for property and affairs if it is relevant
  • Supporting information for personal welfare if it is relevant
  • Deputy’s declaration

The declaration will outline your circumstances and include details of the
responsibilities and duties you as a deputy must carry out. You must prove to the Court of Protection that you have the skills, knowledge and commitment to carry them out. You must also assure them that there is nothing that might make your appointment inappropriate – for example, you are not bankrupt and do not suffer from poor health.

In addition, once applied, there is a 14-day wait to see if anyone else objects you as the deputy. For a personal welfare deputy, be prepared for a hearing so the court can get more information.

Because the process is long, there are situations when you need to make an emergency application. For instance:

  • The person needs urgent medical treatment
  • The person is about to be removed from the place they are living unless an intervention takes place
  • To execute a statutory Will or important financial transaction because the person is expected to die soon

4. Deputyship is costly

When it comes to deputyship, there are several fees to pay.

  • The application fee for each type of deputyship is £365 (or £730 for both types).
  • If the court decides your case needs a hearing, add £485 on top.
  • A £100 assessment fee for each new deputy.

Subsequently, after a deputy is appointed by the court, there is an annual supervision fee depending on what level of supervision your deputyship needs. In general:

  • £320 for general supervision.
  • £35 for minimal supervision – this applies to some property and affairs deputies managing a budget which is less than £21,000.

For a property and affairs deputy, there is also a security bond involved. The aim of the bond is to make sure that the deputy doesn’t misuse the money whom he/she is a deputy for. The amount of the security bond depends on:

  • The value of the estate of the person one is a deputy for
  • How much of their estate the deputy controls

As you can see, becoming a deputy is a costly exercise. On the other hand, if you have appointed a lasting power of attorney, the LPA registration process would only set you back £82 for each type of LPA (or £164 to register both types of LPA).

5. A report must be summited each year

A deputy must write a report each year explaining the decisions they have made as a deputy. If the Office of the Public Guardian (OPG) needs additional information, the deputy will be required to write more reports.

The main report must include:

  • The reasons why decisions are made, like why they were in the best interests of the person you’re a deputy for.
  • Individuals you have spoken to and why what they said was in the person’s best interests.
  • For a property and financial deputy, information about the finances of the person you’re a deputy for must be included.

6. A deputy is likely to need the help of a solicitor

The process of becoming a deputy is long and costly, and the subsequent legal requirements like security bond, manage a Court Funds Office account, and report writing are also complex. More crucially, this happens at a time when the person you want to be a deputy for cannot make decisions for themselves. It is painful to know that you aren’t able to help the person immediately unless the Court of Protection has approved your application, or unless you have made an emergency application.

To make sure that the application goes through without a hitch and the subsequent requirements are handled carefully, most families turn to an experienced solicitor like us for assistance. Our solicitors for the elderly have been assisting families in South Yorkshire, North Nottinghamshire and Derbyshire to plan and safeguard their interests. Contact us today to kick-start a conversation on how we can assist you and your loved ones.

Plan for the future with a lasting power of attorney instead

Deputyship has pitfalls, as illustrated by the points above. To save your loved ones from going through the deputyship process, you can start appointing two lasting power of attorneys (LPA) instead – one for property and financial affairs and another one for health and welfare.

Once your LPAs are registered, you will have peace of mind in knowing that they are legally appointed and trusted individuals who can safeguard and protect your interests. Should an unfortunate event happen later, your spouse, children and relatives do not have to face the complications of a deputyship application nor manage the ongoing legal requirements.

Making an LPA application is easy if you have one of our solicitors working with you. Otherwise, mistakes in the application will see the Office of the Public Guardian rejecting your application, costing you time and money.

Call any of our local Foys offices today

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This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

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The danger of DIY Wills

The danger of DIY Wills

Errors in Wills are common and can lead to disputes which result in considerable legal costs taken from the estate. Find out why a DIY Will may not be a good option for you.

DIY Wills have been blamed for the sharp increase in the number of contested estates across the UK. Indeed, attempting to write your own Will may lead to devastating consequences. For instance, unclear clauses may see your relatives turn against one another or a loved one may choose to contest the validity of your Will. Sorting out arguments may result in costly legal action which will reduce the money in the estate.

To highlight the dangers of DIY Wills, our Wills, Trust and Probate team at Foys Solicitors shares the pitfalls to avoid and advises you to think twice before opting to do it yourself.

What is a Will, and why should a solicitor help me write one?

A Will is an important legal document, encompassing how you want your estate (property, possessions and finances) to be distributed among your family members and/or charitable organisations that are close to your heart after you have died. This legal document includes every asset you have, your beneficiaries and most importantly, the name of your executor(s) who will manage the distribution of everything that you have left behind.

Getting a solicitor to help you write one means your Will is well-considered and error-free. Here are a few scenarios where a solicitor can help and make sure your Will is watertight.

Beware that witnesses cannot benefit from your Will

The witnesses of your Will (and their spouses) cannot benefit from your Will. If a witness (or the spouse) is a beneficiary, the Will is valid but the beneficiary will not be able to inherit.

You suspect some family members will want to make a claim

Divorce and remarry are now common occurrences and many of us have blended families with multiple step-siblings and stepchildren. It is not easy to please all and if you suspect a family member may challenge the validity of your Will when the time comes, make sure you get a solicitor to help you create an error-free Will and minimise the stress your loved ones have to endure later.

You share a property with someone who is not your spouse

This is actually more common than one would expect – you may have purchased an investment property with a friend, helped a relative to buy a house and pay for the mortgages – as long as you share a property with someone who is not your spouse, get in touch to create a Will that protects your interest and your loved ones.

Other scenarios

When there is a business involved, when you want to set-up a trust, when you have property in another country, when you retire in another country but have property in the UK, when you wish to make provision for a dependent who is unable to care for themselves – these are some scenarios when a solicitor can help you create a watertight Will.

The dangers of DIY Wills

Without the guidance of an experienced solicitor, a DIY Will is likely to contain mistakes or omissions, leaving your family to argue over your possessions and property.

Remember, when disputes happen, the legal costs are likely to be paid for by your estate, meaning the values of your estate will reduce. Do not let a disgruntled relative keep your heirs and loved ones from the inheritance – you can minimise this risk by not using a DIY Will and making mistakes.

To write a Will, you must be over 18 and have mental capacity to understand the outcome of the document you are writing and signing. If you have been diagnosed with a neurodegenerative disease, it is wise to contact us as soon as possible. Doing so will allow us to get medical evidence to say you understand what you are doing and we can help you create a Will that avoids future complications or doubts.

Also, a DIY Will is unlikely to accommodate the changing of your circumstances. For instance, you have children from your previous marriage and you are about to remarry – in this instance, it is wise to provide for them in a new Will to minimise the chance of them being disinherited in the future.

Common mistakes on a DIY Will

1. Incorrectly signed and witnessed

Your Will needs to be witnessed by two people who are present at the time of your signing for it to be legally binding. These witnesses must be UK citizens, 18 years or older and not be named as beneficiaries in your Will or married to someone who is.

2. Omitted assets or debts

Forgetting to mention assets in your Will means your heirs are not likely to get the amount specified. Also, it is important to consider debts like mortgages and how they may reduce the values of your estate.

Pecuniary and residuary legacies

If you have £100,000 in the bank, you may say your sister will get £20,000 (a specific sum of money which is considered a pecuniary legacy) and your child will get the remaining £80,000 (a residuary legacy). But by the time you die, the money in the bank may be just £20,000. This means your sister gets £20,000 and your child is left with nothing because residuary legacies are paid after pecuniary legacies.

Out of date

A new marriage will invalid any existing Will in England and Wales. Also, your named executor(s) or beneficiaries may have died before you.

Hand-written amendments

You cannot amend your Will after it has been signed and witnessed. The only way you can change a Will is by making an official alteration called a codicil which must be signed and witnessed.

Inappropriate executors

An executor will be considered inappropriate if they are under 18, do not feel capable of accepting the responsibility or live overseas.

What happens if your DIY Will is considered invalid?

If a Will is considered invalid, then the Rules of Intestacy apply. In this case, only a set of individuals will be entitled to inherit your estate and the order is as follows:

  • Your spouse or civil partner
  • Children, grandchildren, great grandchildren
  • Parents
  • Brothers and sisters (or their children)
  • Half-blood step brothers and sisters (or their children)
  • Grandparents
  • Uncles and aunts (or their children)
  • Half-blood step uncles and aunts (or their children)
  • The Crown

These may not be the people you have in mind as your heirs. Also, as the rules of intestacy do not acknowledge your unmarried partner, stepchildren, in-laws, friends and organisations you care about, they will not be able to cherish your legacy as a result.

By employing a dedicated and experienced solicitor to assist you with writing your Will, you can ensure that this will not happen. At Foys, our solicitors have decades of experience with Will writing, and you can rest assured that your wishes after death will be respected.

What does writing a Will entail?

The legal and correct process of writing a Will does not need to be complex or lengthy. With Foys, we will guide you every step of the way and make sure that your Will is well-considered and error-free, thereby preventing any misunderstandings and disputes among your relatives.

A valid Will needs to:

  • Be in writing, signed by you and witnessed by two people.
  • Have been written by you while you had the mental capacity to make and understand the effect of it.
  • Be made by you voluntarily, and without any pressure or coercion from another person.
  • Be completely free of errors and transparent as to what your wishes are.

Foys Solicitors is trusted with Will writing

With the assistance of our dedicated Will and Probate solicitors, the experience of creating your Will is made significantly straightforward and affordable. We offer competitive fixed standard fees for our services, safeguarding your wishes and putting you and your family at ease.

We do not want legal fees to deter you from protecting your interests in the future, so we offer a FREE initial consultation. This allows us to determine the best course of action and understand how we can help you.

To get in touch simply fill out our Online Form or call your local Foys Solicitors office:

If you found this interesting, check out:

Please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

Residential Property

Viewing and moving house is now allowed

Viewing and moving house is now allowed

As lockdown measures are being eased across England, buyers and renters can now view properties in person and move home.

When the lockdown began on 23 March, it was an unprecedented step to limit the spread of coronavirus. At that time, strict restrictions on the property market were imposed, causing many homeowners to wait anxiously for the pandemic to be contained quickly. Today, as lockdown measures are being eased across England, we can finally report that viewings and house moves are now allowed.

Property market to restart

Sellers, buyers, landlords and renters can finally breathe a sigh of relief as the property market is now allowed to operate from today.

What it means is that you can now view properties in person – although you must still follow strict social distancing measures when carrying out viewings.

It also means that hundreds of thousands of homeowners and buyers can now resume the delayed transactions.

The sale of a property requires a conveyancer to transfer the legal title. Our conveyancing team has been and still continue to assist clients without face-to-face appointments.

Whether you’re selling or buying a property, or you’re a landlord preparing to rent out your buy-to-let in the South Yorkshire region, talk to our Property and Conveyancing Solicitors today by calling your local Foys office or sending us a message via our Contact Form.

Please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

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Close up of a hand signing a Last Will and Testament document

The importance of writing a will

The importance of writing a will

Wills are crucial to protect our loved one’s financial future and if you haven’t made one, contact the Wills, Trust and Probate team at Foys Solicitors.

Understandably, as many of us tackle life on a week to week basis, we spare little time for any future planning. This may be the reason why research carried out in 2018 by Royal London found that 54% of adults in the UK didn’t have a Will.

The truth is many of us work hard to protect and provide for our loved ones, and writing a Will can ensure this continues after we are gone. In this article, our Wills, Trust and Probate team at Foys Solicitors aims to discuss the importance of a Will and essential things to consider when writing a Will.

Why is a Will important?

Here are some of the key reasons why making a Will can be one of the most important things you ever do:

1. It makes sure your assets are distributed the way you want

By creating a Will, you ensure that your estate is distributed in line with your wishes to the people you love the most when you die. This is a vital part of estate planning. Estate planning refers to how you would like your estate – your property, money, financial and personal assets that you’ve worked all your life for – distributed after your death. In turn, this can make it easier for your loved ones to inherit and treasure your legacy during this challenging period. A Will can also allow you to voice any wishes you would like fulfilled after you’re gone.

2. Without a Will everything you own will be shared out in a way defined by law

At Foys, our solicitors have seen the devastating effects of what happens when somebody dies without a Will and relatives in mourning have no say on how the deceased’s assets are distributed. During this tough period, the Rules of Intestacy apply, meaning that people you may not have wanted to receive any part of your estate could end up with potentially all of it. According to these rules, only the deceased’s married or civil partner, children (whether they were within the individual’s care or not) and other close relatives can inherit from the estate. Partners who were not married cannot inherit through this process. Furthermore, all personal belongings, along with the first £250,000 of the estate and half the remaining estate, are inherited by the closest living married or civil partner. The remaining estate would be distributed among other living relatives including children.

The risk of not drafting a Will could disinherit the people your love dearly or discontinue the support you have been giving to charitable causes that are close to your heart. Having a Will drafted by our team of professional solicitors at Foys can make sure that you avoid this outcome and help you to provide suitably for those you cherish the most.

3. A Will can help you reduce Inheritance Tax

Inheritance tax is a tax on the estate of the deceased. However, you don’t have to pay this if the estate is valued below £325,000. Any assets passed on to your spouse, civil partner or a charity are also exempt from this tax. If you give your home away to your children (including stepchildren adopted and fostered) or grandchildren, this threshold increases to £475,000. The standard rate of Inheritance Tax is 40% and is charged on everything above the threshold.

4. In some instances, time is of the essence

There’s no set time to write a will, with most people assuming they’re going to do it later in life. However, if you have a family, have a lot of assets or are in unstable health, it is best to do it sooner rather than later.

When writing a Will, it is imperative that you have mental capacity, meaning the ability to make rational decisions in your best interest. For those who have a form of dementia such as Alzheimer’s and haven’t written a Will, at some point, you may lose capacity and could therefore legally be unable to write one. Writing a Will as soon as possible is vital for people with neurodegenerative conditions to ensure their future wishes are carried out. For more information, check out this Protection of the elderly service page.

Before writing a Will

Before discussing with our solicitors about your Will, it is vital to make a list of the following items:

1. All the assets you have

List all the money, property, investments that you have. If you have property in a country where they do not recognise the freedom of testation, our solicitors will advise if you need to make a foreign Will to ensure that the property will go to your beneficiaries.

2. Decide who are your beneficiaries

Most people naturally think of the immediate family members including:

  • Your spouse
  • Your children whom you provide for
  • Anyone whom you have been a guardian for, such as a foster or stepchild
  • Anyone else you were providing for
  • Extended family or friends

Nowadays, divorce and re-marry are common occurrences so it is worth to consider all possibilities.

In addition, although you’re at liberty to include or exclude anyone in your Will, there are a few people whom you must provide for under the Provision for Family and Dependants Act 1975. If you wish to leave someone out, be aware that they may challenge your Will after you have gone. Therefore, it is best to contact our specialist team at Foys and make sure your Will is safe from any legal challenges.

3. Choose your executors

An executor is a person who is legally responsible for ensuring your Will is followed. The executor must be at least 18, trustworthy, and can be one of the beneficiaries (like your spouse or one of your children). It is wise to choose more than one executor just in case one of them is unable to perform their duties.

Sometimes relationships can break down between an executor and the beneficiaries to the extent that an estate cannot be properly administered. To avoid future complications, you can choose a solicitor to be an executor instead. By placing your executive trust in our Wills, Trusts and Probate Solicitors at Foys, you can rest easy in the knowledge your estate is in safe hands.

The contents of the Will

A Will should contain several key elements:

  • Who you are, describing enough personal information to certify it is your Will.
  • The names of your beneficiaries (these can be people, charities or institutions).
  • The name of a guardian for children whom you care for independently (if they are under 18).
  • Your assets and their values.
  • How you would like your assets distributed after you’re gone.

In addition, you may also wish to include your funeral preferences (whether you want to be buried or cremated for example), trusts that you might have put aside for your children or sentimental items such as letters or messages you wish to give to specific family members.

Requirements for a valid Will

For a Will to be valid, it must be:

  • Made by you (who is 18 years old or over)
  • Made by you voluntarily and without pressure from any other person
  • You are of sound mind, meaning you are fully aware of the nature of the document being written or signed, aware of the property and the identify of your beneficiaries
  • You create the Will in writing
  • The Will is signed by you in the presence of two witnesses who are over 18
  • The Will is signed by the two witnesses, in the presence of you after you have signed it

Be aware that a witness or the married partner of a witness cannot benefit from a Will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the Will.

If our solicitors help you to create your Will, we can act as witnesses to the signing of the Will and make sure all the legality is covered.

Carrying out your Will after you pass away

After you pass away, your executor will locate the latest Will and calculate the total value of your assets – if the values exceed £15,000, then the executor will apply to the Probate Registry for a Grant of Probate – a legal document which confirms the executor has the authority to manage your assets or administer the estate in legal terms.

With the Grant of Probate, your executor can now access your bank accounts, sell property, submit tax returns and pay tax liabilities. After that, the executor can start to distribute your estate to the beneficiaries stated in your Will.

It must be noted that administering an estate involves a significant amount of work, so the executor is often busy. During this stressful time, it may be worth getting our solicitors to assist, making sure that the probate process is managed efficiently and correctly.

Expert advice from our Wills, Trusts and Probate Solicitors

Writing a Will can be one of the most important things you do to protect your family and loved one’s future. To help you through this process, we offer a FREE initial consultation so our Will, Probate and Trust team can help you create a well-considered and error-free Will that truly reflects your wishes.

Our services include:

  • Preparing your Will
  • Acting as witnesses to the signing of the Will
  • Preparing and Advising Trust Deeds
  • Obtaining Grant of Probate/ Letters of Administration
  • Distribution of a deceased’s estate

To find out more about how we can help with your needs, call your local Foys Solicitors office today or get in touch through our Online Form.

Please note that although we may use the word solicitor, your case could be carried out by a legal advisor, legal executive or paralegal depending on the nature of the case.

You may also be interested in:

This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

Enquire About Our Services Today

Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

domestic abuse solicitors support

Domestic violence and coronavirus: How Foys Solicitors can help you

Domestic violence and coronavirus: How Foys Solicitors can help you

Foys Solicitors’ domestic abuse and injunction solicitors can help those in need.

As a result of the COVID-19 pandemic, we are all adjusting to a new way of life. More of us are spending longer periods of time at home with family because of the Government guidance regarding social isolation. While many may relish the time at home with family, it’s important that we spare a thought for those who are experiencing domestic abuse. These stay-at-home guidelines are likely to reduce or even shut down routes to support and safety for victims who simply cannot find a means to separate from their perpetrator.

What is domestic abuse?

According to Women’s Aid, domestic abuse is an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual violence. In the majority of domestic abuse cases, partners or ex-partners are the perpetrators. However, other family members or even carers can also be abusers.

Isolation is a tactic used by domestic abuse perpetrators to control their victim. By keeping the victim isolated, there are fewer opportunities for them to actively seek help. There is also a decreased chance of any physical injuries being noticed. However, it is important to remember that domestic abuse is not just physical abuse, and a physical mark is not always left. Coercive and controlling behaviour, which is on the rise, is another common form of domestic abuse.

Government support for domestic abuse victims and charities

Following the first week of lockdown, domestic abuse charity Refuge said there had been a 25% increase in calls to the National Abuse Helpline and online requests. The Government has clarified that victims of abuse will be allowed to leave their homes to seek help despite the restrictions and said it would provide £2m in extra funding to support charities dedicated to helping victims of domestic abuse. Additionally, Home Secretary Priti Patel has also launched an initiative called “You Are Not Alone” to help those experiencing domestic abuse.

Although charities are seeing an increase in cases now, they’re also bracing themselves for a flood of those in need of help and support when the lockdown is over and people can move around more freely.

Legal solutions for victims of domestic abuse

The legal remedies which are available for victims of domestic abuse include applying for a non-molestation order (commonly known as an injunction) or an occupation order. Such an application can be made urgently where circumstances require it. A statement setting out the nature of the difficulties and the remedy sought is required to support an application.

An application for a non-molestation order and/or occupation order can be applied for when there has been physical violence, when threats of such behaviour have been made, or there has been intimidation and/or harassment.

A non-molestation order aims to control a person’s abusive behaviour by requiring them to refrain from undertaking a particular act, whereas an occupation order would seek to regulate the living arrangements of a family home.

Breach of a non-molestation order is a criminal offence. Breach of an occupation order could result in the police being required to arrest the perpetrator if a Power of Arrest is attached to the order.

Not being able to come face to face with a lawyer may make a victim question whether it is worth seeking legal advice about the remedies available to protect them. While Courts are closed to the public, in many cases judges, lawyers and court staff are still working to ensure access to justice is available. The Courts have embraced technology available to conduct hearings remotely by telephone or video call and where necessary at short notice.

Foys Solicitors is here to help domestic abuse victims

Foys Solicitors is keen to ensure that victims of domestic abuse do not suffer in silence and understand that help is always available, especially during this lockdown period.

At Foys Solicitors, we continue to operate a full service to all clients, albeit from a remote working environment. Modern technology allows us to help with matters in ways we would have considered unconventional before the nation’s lockdown. We can offer initial and subsequent meeting via video calling services such as Skype and FaceTime. Anyone seeking advice, on a confidential basis, should not hesitate to contact your local Foys Solicitors office or via our contact page.

Our team of Domestic Abuse and Injunction solicitors will always be here to help you through your situation.

Our offices are:

Please note: Domestic abuse remains one of the areas in which Legal Aid is still available.

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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

Attending a video call

My quarantine experience during the COVID-19 pandemic

My quarantine experience during the COVID-19 pandemic

Melanie Penney, a Wills and Probate legal executive in our Worksop office, writes about her experience during this pandemic.

When I rushed home after a busy 10-hour day in the office, I noticed our 6-year-old had developed a persistent cough. Coughing – a common sign of COVID-19 – is alarming given the current situation where the virus is rapidly spreading. Suddenly, our dining room became my office and we were beginning our two weeks of self-isolation, or so I thought. But as soon as we started self-isolating, the UK lockdown was also announced, meaning the office would be shut for three weeks, possibly even longer.

Working from home

My desktop computer arrived on the first day of self-isolation. Sitting in front of a computer in my dining room felt just like being in the Worksop office.

At Foys Solicitors, we are prepared for a situation like this. Our robust digital infrastructure means we can securely work from a remote environment with little to no interruption to service – we’re adapting and we’re winning. However, it quickly dawned on me that as a Wills and Probate lawyer, I interface with clients regularly and I must find a way to still meet with clients while adhering to social distancing rules.

Thankfully, technology has come to the rescue – initial appointments are carried out through WhatsApp Video Call, FaceTime or Skype (I feel like I’m down with the kids now). For final meetings, I conduct them through open windows or doors at a safe distance of two metres. I know my colleagues are also using video calls to ‘attend’ court – and perhaps like me when I’m on video calls, they look professional from the waist up but may still in their pyjama bottoms.

After our two-week self-isolation, my husband had to return to work which left me to juggle meetings and looking after our 6-year-old, who is living her best life in isolation with plenty of singing and dancing, not to mention changing at least four unsuitable outfits a day. Once, she even taught our pet dog how to trampoline when I was attending a telephone appointment – that really was a face-with-tears-of-joy emoji moment. Suffice to say, dealing with an energetic daughter during lockdown requires a creative approach. I soon master the ‘Swan Movement’ – keeping a straight face during video calls with clients while my hands are waving furiously in an attempt to communicate with my daughter; it is as if I have developed a new sign language.

We’ll make it through the COVID-19 pandemic

I definitely miss seeing my family, friends, colleagues and, for some bizarre reason, the daily moans, and I know that this pandemic will be over someday. As a nation, we will come out on top!

Living in the midst of this pandemic could have spelt disaster. I could have experienced negativity in abundance which resulted in never-ending days seeped with stress. My career could have come hurtling towards the ground with speed. My firm could have folded. I could have run out of loo roll (oops)! But none of these scenarios has happened. On the contrary, I have witnessed an incredible rise in human kindness among family members, colleagues, clients, friends, neighbours and even strangers. I have experienced a lovely growth in community spirit and a stronger sense of togetherness.

My daughter has learned that the frontline NHS workers are heroes. She gleefully (and gratefully) clangs her wooden spoon and pan every Thursday evening as my neighbours and I join her – all with bright smiles and a tremendous sense of gratitude and pride. At work, everyone at Foys Solicitors also acknowledges this heroism and projects our gratitude by offering discounted services to all NHS workers.

We have discovered a new sense of gratitude for colleagues, warehouse workers, truck drivers, farmers, grocery store assistants and other professionals who are out on the frontlines for us every day as we fight this virus. We have become protective of our health, our families, our friends, our homes, our jobs, our environment, our communities and more.

This pandemic is without doubt challenging, but we’re going to win this.

I am confident the positive outcomes we are experiencing during quarantine will continue long after lockdown is lifted and we will be better because of it. For now, I am grateful that my house is multifunctional – it morphs from home to office, school, cinema, gym, restaurant and salon. I am also proud to work for Foys Solicitors – #FoysSolicitorsWinning as the hashtag goes.

Best wishes,

Melanie Penney

If you would like to know more about our Wills and Probate services, take a look at our Wills, Trusts and Probate page.

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Book an initial FREE consultation or to find out more about our personal and business law services

Call the office nearest to you and speak to one of our professional specialists or fill out the form below

Elderly woman lost in thought

Protect your loved ones with dementia from financial abuse

Protect your loved ones with dementia from financial abuse

Dementia patients are some of the most at-risk individuals for financial abuse. However, there are several steps you can take to ensure your family member’s safety.

According to the Alzheimer’s society, 850,000 people have dementia in the UK today and that number is expected to rise to 1 million by 2025. The chances of getting dementia for over 65-year olds are about 1 in 14. When the disease progresses, it can be hard to watch our loved one slip away, gradually losing the ability to care for themselves.

Dementia and fraud

Considering how upsetting dementia can be on your family members and those who wish to help, it may come as a shock that there are people out there who would use your family member’s vulnerability to their advantage, seeking to financially manipulate and abuse them for monetary gain.  Perpetrators of this kind of abuse prey upon dementia patient’s memory loss, reduced cognitive function and emotional instability.

Incidents of financial abuse of people with dementia are far more common than we would like to think. Published in 2015, the Financial Abuse Evidence Review by Age UK noted that ‘those who have dementia or reduced cognitive function are the subgroup of people who are most at risk of being victims of financial abuse.’ The report indicated that nearly 130,000 people aged 65 and over in the UK had suffered financial abuse. This, however, is a rough estimate as many cases are not reported.

Victims of financial abuse can be left bankrupt, unable to pay for the crucially important support and care that they need. Furthermore, financial abuse can be extremely emotionally traumatic for both the victim and their support group. So following a diagnosis of dementia or Alzheimer’s, this NHS website encourages patients to start getting support, making a Will, putting your papers in order, claiming benefits, appointing Lasting Powers of Attorney and planning for advance care, to name but a few.

In this article, our protection of the elderly team at Foys wants to go one step further by discussing measures which you can take to safeguard the financial affairs of your relative who is suffering from dementia.

What does financial abuse look like?

The Care Act 2014 defines financial abuse as a type of abuse which includes ‘having money or other property stolen, being defrauded, being put under pressure in relation to money or other property, and, having money or other property misused.’ This kind of abuse can start subtly and is often hard to detect. The abuse can take many forms and it is important to note that it is often associated with other kinds of abuse.

Examples of financial abuse could be:

  • Forging signatures on cheques
  • Taking pension payments or other benefits away from the person with dementia
  • Pressuring the victim to act as guarantor for a loan
  • Withholding money from the individual with dementia
  • Stealing money or belongings
  • Forcing someone to make changes in their Will, property or inheritance

Who are the perpetrators?

While phone and email scams are certainly out there to defraud your loved ones, it may surprise you that perpetrators of financial abuse are likely closer to home than you may think. In a study published by Age UK, they quoted a study which states that 70% of financial abuse is committed by close family members due to their proximity and previous relationship to the individual. Furthermore, almost 50% of financial abuse in the UK is carried out by ‘adult children’ – grown-up sons and daughters.

Individuals with dementia may also be vulnerable to those in positions of power who are in constant contact with the individuals. These individuals will attempt to either threaten or get very close to their victim in an attempt at extorting information regarding their possessions and finances.

The warning signs of financial abuse

Financial abuse can be hard to spot, especially when the victim has dementia and may not be able to remember the fraud taking place or have information about it. However, there are a number of warning signs of financial abuse that you can look out for:

  • Stress and anxiety expressed with the person with dementia
  • Money loss that can’t be explained
  • Signatures on cheques that do not fit their handwriting
  • Unusual purchases in bank statements
  • Large amounts of cash being withdrawn from the bank account
  • Notices of unpaid bills
  • Lack of money to pay for essentials when there should be sufficient funds

Three steps to protect one’s financial affairs

Dementia is a degenerative disease. This means that as time goes by your family member’s ability to make and remember decisions is going to decrease. Considering this, it is imperative that as soon as your family member is diagnosed with the disease you begin to implement plans concerning their financial future. Early planning ensures that they are able to make their own decisions while they still can. During these discussions it is important to ensure that there is a trusted and vigilant support network so, if possible, no one person is responsible for everything. Within these conversations, there are a number of frameworks and safeguards that can be put in place to protect the individual with dementia.

One of these vital frameworks is the Mental Capacity Act 2005. This act is vital in informing the early planning process. The act assumes a person ‘to have capacity unless it is established that [they] lack capacity’ and if not, facilitates decisions to be made on their behalf ‘in [their] best interest.’

Step 1: Appoint a Lasting Power of Attorney (LPA)

One of the best ways to safeguard against financial abuse is to plan ahead and appoint a trusted person to act as your attorney through a legal arrangement called the Lasting Power of Attorney (LPA). An attorney does not have to be a legal professional but someone who is trustworthy, financially-minded and will not take advantage of you when you are at your most vulnerable. More than one attorney can be appointed.

There are two different types of LPAs:

Property and Financial Affairs

This is where a person (known as a donor) appoints a trusted family member or friend (known as an attorney) to make decisions on the management of property, bills, bank or building society account, pensions and possessions held by the donor. Once the attorney is registered, he/she can start to act and make decisions.

Welfare and Health

This is where a person (a donor) appoints someone (an attorney) to make decisions regarding medical care and medical needs in the future such as the choice of a care home, healthcare provider and the choice of life-sustaining treatment. This can only be used once the donor can no longer make their own decisions.

LPAs must be error-free and must also be registered with the government through the Office of the Public Guardian. Considering the vital importance of LPAs, it is crucial they are completed and processed right the first time around. Contact one of our elderly care solicitors at Foys and you can be safe in the knowledge that this process is left in experienced hands.

Step 2: Create a Will (if they haven’t already)

If your family member has not made a Will, it is important to begin making one as soon as they are diagnosed. As time goes on, they may not be able to make clear and rational judgements so the earlier a Will is made, the safer you can be in the knowledge it is their genuine wishes expressed in the document.

When your family member is writing their Will, it is important that they attain medical evidence to indicate they are mentally fit enough to make independent decisions still. For more information about the importance of writing a Will and what it should include, follow the link.

At Foys, our specialised and professional Will solicitors can assist your loved one in creating their Will, making sure that the document is error-free and uncontestably against anyone who may challenge the validity of the Will later.

Step 3: Protect against phone and internet fraud

If you are not a full-time carer looking after your loved one with dementia, beware that fraud schemes such as spam emails and bot-callers pose a real risk to your loved one’s finances. A recent US study published by the Annals of Internal Medicine highlighted that people with dementia had a far higher risk of falling for these sorts of scams. This fact, coupled with the reality that most individuals above the age of 65 may not be the most tech-savvy, means that technological protection is crucial.

In order to proactively protect your relative with dementia and their financial affairs, it is worth making sure that your relative’s email accounts block all spam or junk mails. Furthermore, most phone companies offer systems which only allows calls from known phone numbers to be taken. Alternatively, you can set up an anonymous call rejection system on their landline.

Top 5 tips to lower fraud risk

1. Utilise online banking to track their money

Online banking can be your best friend when it comes to tackling fraud. By making sure that you have access to your family member’s account, you will be able to track their weekly spend, pensions, bills and any other direct debits coming in or out.

2. Make them known at their bank

While tracking one’s online banking can be extremely useful, sometimes fraudsters may trick them into withdrawing money in person at the bank. Many banks have internal structures in place to identify and monitor an account that is at risk, so make sure the bank know that your relative may be at risk of fraud.

3. Make an emergency action plan

Having a worst-case scenario plan is key to quickly react to unexplained money coming out of your family member’s account, especially when they have lost the ability to manage their own financial affairs. Contact the bank and all other relevant establishments in order to block the fraud. Reducing the amount they have in a bank and setting up a separate ‘rainy day fund’ is also a good idea. This way, your loved one has a backup of financial support.

4. Make sure any financial information is kept properly

When visiting the home or living accommodation of an individual with dementia, it is a good idea to make sure any sensitive financial information is taken and kept somewhere else. People with dementia may lose or misplace vital documents which could be used or misappropriated by someone else.

5. Create a checklist of valuable possessions

Value and organise valuable possessions that they own with a few trusted family members to keep tally of the location, price and number of possessions. This will help in quickly identifying if anything has been taken or stolen.

Foys can help individuals with dementia to plan for the future

At Foys, our solicitors have been championing the protection of the elderly for years now. Our elderly care legal experts have solid experience in helping senior people plan and safeguard their legal and financial affairs. We are here to provide any legal advice and support that you and your loved one may need.

To kick-start the discussions about Lasting Powers of Attorney, creating a Will, setting up a Trust, as well as advice on planning for care home fees and protecting one’s assets, take advantage of our FREE initial consultation by simply filling out our Online Form.

Alternatively, you can call your local Foys Solicitors office:

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This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

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