Elderly Clients: A Precedent Manual

  • Author : Denzil Lush
  • Author : Caroline Bielanska
  • Author : Jennifer Margrave
  • Author : Moira Sofaer
  • Date : October 2010
ABOUT THE AUTHOR: Moira Sofaer is a Barrister at 1 Mitre Court Buildings and works as a Mediator

A ll the special situations arising from age are covered in this manual. It is aimed at the private client advisor, but a concerned relation would also be able to use it as it is reasonably easy to read.

Now that the Court of Protection (CoP) extends to welfare areas, this wide-ranging resource is useful for deputies operating outside their comfort zone.

It begins with a check list for the first interview, flagging up who the client is, potential conflicts and how to reduce the possibility of financial abuse when a relation is escorting the client to the interview. Capacity from the practical angle of creating the right environment to asses it and how to assess it concludes with precedents for communication with and templates for GPs.

The frail are more likely to consider sharing accommodation and precedents are provided for a licence to occupy where no equity is acquired but expectations are set out; for buying a property jointly, where payment is made to construct a ‘granny flat’; and when a carer moves in to look after an older person (C) with the carer receiving a beneficial interest. These meet all the potential arrangements C would consider but not think through until things go wrong.

There is a long chapter dedicated to gifts. The Law Society of England & Wales’ practice note and inheritance and capital gains tax regimes relating to them are set out. The most interesting aspect here is anti-avoidance provisions the Local Authority can take to recover payment for means tested services, if the intention in making the gift was to remove C’s assets from the calculation. Steps to minimise the chances of that happening are explained. Checklists also provide a guide to attorneys under a lasting or enduring power making gifts. As undue influence is a recurring problem, the professional advisor has the benefit of being told how to spot and avoid it.

Care homes are heavily regulated and their contracts, tips on what to look out for when choosing one and how to make complaints are included. This is where the manual would be a useful recommendation to a concerned relative; likewise how to apply to become an appointee able to collect C’s state benefits.

Naturally, wills are given attention. Requirements for advance medical decisions, a ‘living will’ and a comprehensive set of drafts is very useful as this is new territory for private client advisors. Also, under the conventional will section additional checklists are given for preparing an emergency will, suggestions for what to include in a generic emergency will kit and 28 short precedents to safely create a holding position. Finally, how to apply for and the conditions under which the CoP will make a statutory will for a C who has lost testamentary capacity are detailed with the procedure laid out in a step by step guide. As elderly clients may have dated wills, be intestate due to marrying after the last will or have radically changed personal circumstances, the court can intervene to preserve assets and adjust a will to provide for unforeseen circumstances.

Equity release is the first port of call for older clients who need to raise funds and merits a substantial section. The home reversion (partial sale) and lifetime mortgage schemes are compared with charts demonstrating how age impacts on the cost of the scheme. The types of property that are unattractive to providers are listed. Given the shady past for this funding, the FSA Firm Check Service and a list of approved trade organisations is included with a warning that sale and rent back schemes are not fully regulated reduce risks for the inexperienced. Alternative ways of using the property to raise money are outlined and there is a list of the state benefits that are affected by increased funds. Among the precedents is a comprehensive full advice file checklist to ensure all the topics a client needs to consider are covered.

The staying-at-home option often requires carers usually family members. A checklist is given to prepare them for being assessed for entitlement to support services from the local authority. They system of vetting paid care workers and ensuring they are properly trained completes the section.

The manual comes with a disc of the precedents for each chapter. These are handy for printing out the checklists, making applications and drafting contracts. It is a bit worrying it was thought necessary to include a draft letter of condolence…

ISBN: 978 1 84661 1735
Price: GBP75
Publisher: Jordans (March 2010)


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