As people continue to live for longer, the risk of dementia and in turn the loss of the ability to manage your own financial affairs is an increasing concern for many. Whilst many people are aware of the benefits of making a will, there is much less awareness of the advantages of having an Enduring Power of Attorney (EPA) in this situation which could happen to anyone regardless of their age as the result of a sudden accident or illness.
An EPA allows you to appoint one or more people to act on your behalf in relation to your financial affairs in the event that you are unable to do so yourself in the future. You may include restrictions that the attorney only act in relation to certain property in certain circumstances or grant a general power enabling them to sell your home, deal with your assets and income and any expenses including nursing home fees.
Whilst is may sound daunting to grant even a close relative such control over your affairs, there are safeguards in place and to become effective, the EPA will need to be registered with the High Court. This is not required until your attorney believes that you are no longer capable of managing your own affairs and notice must be given to you and your next of kin prior to registration to allow for any objections.
Should you lose the ability to manage your affairs without having an EPA in place, your next of kin may need to make an application to the High Court to be appointed as a ‘Controller’ which is a more expensive and time consuming process. Once appointed, the Controller will also have to submit accounts and pay court fees on an annual basis, neither of which is required of an attorney acting under an EPA.
If you would like to learn more about the benefits of putting an EPA in place, call 028 87724333 to arrange a free consultation.
Disclaimer - The opinions and suggestions made within this article should not be interpreted as specific advice in relation to any particular individual or individuals. FG Patton Solicitors does not accept responsibility for any loss occasioned by someone acting or refraining to act on the basis of the opinions and suggestions contained in this article.
Many clients are shocked to learn when the relationship breaks down that they in fact have no automatic right or interest in the property in which they have been living for the last number of years as it is registered in their former partners name. In fact not only do they not have an interest in it but they are not entitled to continue living there against their partners wishes and whilst they may be able to establish an interest if they can prove that they were contributing significantly to the upkeep of the property during that time, that may not amount to an equal share.
Its not all doom and gloom as unmarried couples do have a distinct advantage over married couples in that they can, under the right conditions, enter into a legally binding agreement governing their property in the event of a separation. Whilst married couples may seek to achieve something similar by enter into pre nuptial agreements, these are not currently binding although they will be given due consideration.
It is also vitally important that unmarried couples make a will stating who they wish to leave their property to on their death because there are no inheritance rights created simply by living together over a period of time and your house or other property may pass to your next of kin instead of your partner against your wishes.
If you are thinking of moving in with your partner or you are already doing so and would like more advice about a cohabitation agreement or a will, call us on 028 87724333 or visit www.fgpatton.co.uk to arrange a free consultation.
There is a commonly held misconception that provided you transfer away your home at least seven years before going into care, it is automatically ring fenced from the Trust or Local Authority however this is not the case. The seven year rule relates to inheritance tax in that any gift whether it be property or otherwise, it will fall outside of your estate for IHT purposes if you survive it by seven years.
There is no such time limit when it comes to care home fees and if the local authority can prove that you gave away your house for the purpose of avoiding the cost of care (otherwise knowns as a "deprivation of assets") then they can take that property into account when assessing your means. The more time that elapses between the gift and the requirement for care, the more difficult it will be for the Local Authority to prove that was your intention however they can look into any property transfer regardless of when it took place.
It is also important to bear in mind that by gifting away your home, you are losing control over it and whilst we would always recommend that a right of residence is registered, you are still relying on your son or daughter to insure and maintain the property nor can you sell or mortgage it without their consent. Rather than an outright gift, you may consider putting the property in a trust which is a legal device that allows someone else to hold an asset on your behalf without having full control of it e.g. you can stipulate that they may not sell the property.
Trusts however are not a guarantee of avoiding care home fees either and the same test applies as to whether you put the property in trust with the aim of putting yourself in a better position in a local authority assessment.
If you would like more information on the issues raised above, please contact us to arrange a free initial consultation