Archive for the ‘General’ Category
Tuesday, November 9th, 2010
The Daily Mail recently reported that an estimated 20,000 homes a year in the UK are sold to pay for the care costs of the owner, when that owner needs residential care. That is a pretty dramatic figure and the Mail points out that effectively about 60 houses a day are sold to pay for care costs. Each one of these sales represents a tragedy for the elderly owners and of course it also means their family also loses an inheritance, probably built up by the elderly owner over many years of prudent and thrifty behaviour.
One of the problem issues for families with an elderly member needing care is the soaring cost of care itself. The Mail also reports a rise in care costs of 20% over the last five years. In Scotland nursing and personal care are free to all but accommodation care costs are not. With accommodation care costs now frequently around £30,000 per year it is easy to see how someone’s assets can be devastated very quickly indeed if they have to move into care and pay for it.
Some financial help is available but anybody with capital valued at more than £22,750 has to pay. With this limit being so low it means in practice that every householder in Scotland may be liable to pay for their own care costs – and many Scottish houses may be sold to pay for care.
Is there a way of avoiding this problem? Well at the moment th
ere are several possible ways of dealing with this issue says Caesar and Howie Partner, Sarah Patrick., one of the firm’s Senior Issues team. “What individuals must do is to organise their affairs so that a house is not owned by them individually at the time their assessment for help or otherwise for payment of care costs. Placing a house in a Discretionary Family Trust where it is owned by trustees – usually the individuals themselves with their family will have that effect”. However, any such trust must not be set up solely for the purpose of avoiding care costs. Sarah adds “you need to act well before any care costs are in contemplation and the trust deed must make it clear that it was set up for different reasons. But there are many legitimate reasons for setting up a trust for elderly people not least for the better management of their affairs if they become infirm. If you like, the avoidance of care costs is a sort of beneficial side effect of the trust model”.
Such trusts are becoming quite popular with families who really want to preserve assets but there are other routes to address the issue at least in part. Lesley Cunningham, another partner in the Caesar and Howie Senior Issues team, comments “Some families enter into less sophisticated arrangements such as gifting property to children but reserving the right to live in the house. There are “pluses and minuses” with each route anyone chooses and advice must be sought at every stage. Each family is different and what suits one may not suit another. But, if you are worried about care costs – waiting till someone is about to go into care is much too late. The legal steps which may help avoiding care costs have to be completed long before the point when care is needed – the longer the better”.
Posted in General, Our News | No Comments »
Tuesday, November 9th, 2010
With a £900 million cut in the Scottish Budget next year it is clear various services must be hit. A whole series of bodies including Age Scotland and the Scottish Association for Mental Health have flagged up worries facing various sectors in society – particularly disadvantaged groups.
Now the Law Society of Scotland has joined the debate and warned that cuts in the legal aid budget would threaten the public’s access to justice.
One little known feature of the Scottish Legal Aid system is that it is relatively generous to pensioners. Through the “Advice and Assistance” element of the legal aid system, about 80 to 90% of Scottish pensioners can have basic legal work done absolutely free or at a significantly subsidised cost.
David Borrowman, of Caesar and Howie is worried that this aspect of the system may change. “I really hope that whatever changes come to the system this relative generosity to older folk stays in place” says David…“A key document every older person should prepare is a Power of Attorney, appointing a trusted friend or relative to look after their affairs should they become unable to themselves. We prepare lots of these free to the client because of legal aid and I would hate to see that benefit removed. Apart from anything else the cost of dealing with incapacity would go up because the less Powers of Attorney that are written the more court applications for guardianship there will be.”
David’s advice to pensioners and to those involved in pensioners groups is simple.
“Pensioners should act now – the three key family care documents, a Will, a Power of Attorney and a Living Will can all be done on legal aid. Do them now – don’t’ wait. If this benefit is cut you will be too late.”
Posted in General, Legal Aid, Our News | No Comments »
Tuesday, August 17th, 2010
(Senior Partner Ivor Klayman of Caesar and Howie sounds a note of caution)
We live in austere times these days. Money is tight in most households and we are all looking for ways to get things done cheaply if we can. DIY stores are apparently bucking the retail trend for that very reason. We are also seeing from time to time some legal work being done by individuals themselves. This seems to be limited to probably two areas of work, letting residential property and writing wills. On the letting side some people are reluctant landlords rather than landlords of choice – with letting being a last resort when the housing market is poor. These landlords may be trying to let “on the cheap” On the wills side there has always been a small number of people who go “DIY”.
Sometimes a DIY legal job is done properly but over my career, for every well done DIY job I have seen, I have probably seen 10 times as many failures. That’s a pretty horrible ratio and the consequences for the individuals and their families can be damaging and expensive to fix – if they can be fixed.
Not setting up a Short Assured Tenancy properly can make it very difficult to recover the property from the tenant. Not serving Notices to Quit properly can have the same effect and cause significant wasted court costs. On top of that there is now a mass of legislation placing obligations on landlords, where if any obligations are not met, the consequences are potentially extremely serious. So letting a house in Scotland without understanding the legal framework surrounding residential letting in Scotland is risky to say the least.
On the wills side I have seen “self made “wills which vary from being completely invalid to ones which were wholly confused and contradictory. I have even seen a DIY will which did not actually leave the person’s property to anyone!
If legal documents are to have legal effect, experience of drafting such documents and of the meaning of legal terminology is really necessary to get things right.
I would never dream of rewiring my own house because I don’t have the skill and knowledge of an electrician (and anyway, it would now be illegal!). I think DIY in critical areas is simply dangerous and usually a false economy. In our field we generally earn higher fees sorting out an estate for example with a shambolic DIY will than we ever would from doing a correct will in the first place.
And one last point – all Scottish solicitors carry compulsory insurance against defective work. If a solicitor does make a mistake clients can be and are compensated for losses occurring. This is a massive protection for the Scottish public and really should make people think twice before perhaps dabbling in drafting legal documents which if wrongly completed could cost them or their family dear.
Ivor Klayman
Senior Partner
Caesar and Howie
Posted in General, Our News, Uncategorized | No Comments »
Monday, July 26th, 2010
David Borrowman from Caesar and Howie discusses some of the issues brought up by clients considering granting Powers of Attorney.
Some clients worry about granting a Power of Attorney. Sometimes a client will say “I wouldn’t trust X to look after my affairs properly.“ It is easy to deal with that – in such a case under no circumstances should X be appointed as an attorney. There is no entitlement to be appointed someone’s attorney just because of a blood relationship. So if clients have unreliable relatives they just should not appoint the relatives as attorneys. The whole idea of appointing an attorney is to give powers to someone to act for your benefit and your benefit alone – consequently if a client has any doubts as to the integrity of the person to be appointed – the appointment should not be made.
Assuming a satisfactory person is found, clients can be reassured that person cannot simply do what he or she likes with the affairs of the incapacitated person. Attorneys are bound by a strict code of law laid down in the Adults with Incapacity Scotland Act. Of course they should only act, at all, if the person who made them their attorney is for some reason (usually but not always illness) not capable of dealing with things himself or herself. And when an attorney does act he or she must adhere to five principles laid down in the Act. Simply put these are: 1. There must be no intervention unless for the benefit of the adult – “adult” being the name used for the incapacitated person in the Act. 2. Any intervention must be the least restrictive option in relation to the freedom of the adult. 3. Account must be taken of the present and past wishes of the adult. 4. Account must be taken of the views of others, eg the nearest relative or primary carer. 5. The attorney must encourage the adult to exercise whatever skills he or she has with respect to property etc.
In common sense terms being bound by these principles the attorney I suppose has to exercise his powers effectively acting in the way the adult would have acted had the adult not lost capacity.
Should an attorney breach the principles in the Act or act improperly then the Act does allow for robust sanctions. The Public Guardian, the Mental Welfare Commission and Local Authorities and indeed any person claiming an interest in the affairs of that adult can apply to the court to safeguard the property, financial affairs or personal welfare of the adult. The sheriff then has significant powers to resolve matters including placing that attorney under supervision of the Public Guardian, requiring accounts and reports to be submitted to court, even as far as revoking the appointment of the attorney. On top of all that of course criminal law could come into play if an attorney used his powers to affect a criminal act.
In short there is in place a significant body of law designed to protect a vulnerable adult against an attorney acting improperly – clients can be reassured on that point.
However, the main consideration in choosing an attorney is the honesty and integrity of that person. Powers granted to such a person can make families’ lives so much easier should incapacity strike.
Posted in General, Wills and Executries | No Comments »
Tuesday, September 8th, 2009
New research shows there is a digital divide in Britain between pensioners and non-pensioners when it comes to bagging bargains online‚ and pensioners are missing out financially as a result.
Research from the Institute for Financial Studies commissioned by Age Concern and Help the Aged shows that non-pensioners increased their spending on communications technology at two and a half times the rate of pensioners in the past twelve years.
This comes on the back of new research from the Office for National Statistics revealing that more than 64% of people over 65 have never used the internet .
Pensioners who aren’t online are missing out on hundreds of pounds in potential savings by shopping around and can also often miss out on the best interest rates for savings accounts….
Read the full story at Age Concern
Tags: Age Concern, Pensioners
Posted in General | No Comments »
ere are several possible ways of dealing with this issue says Caesar and Howie Partner, Sarah Patrick., one of the firm’s Senior Issues team. “What individuals must do is to organise their affairs so that a house is not owned by them individually at the time their assessment for help or otherwise for payment of care costs. Placing a house in a Discretionary Family Trust where it is owned by trustees – usually the individuals themselves with their family will have that effect”. However, any such trust must not be set up solely for the purpose of avoiding care costs. Sarah adds “you need to act well before any care costs are in contemplation and the trust deed must make it clear that it was set up for different reasons. But there are many legitimate reasons for setting up a trust for elderly people not least for the better management of their affairs if they become infirm. If you like, the avoidance of care costs is a sort of beneficial side effect of the trust model”.
Such trusts are becoming quite popular with families who really want to preserve assets but there are other routes to address the issue at least in part. Lesley Cunningham, another partner in the Caesar and Howie Senior Issues team, comments “Some families enter into less sophisticated arrangements such as gifting property to children but reserving the right to live in the house. There are “pluses and minuses” with each route anyone chooses and advice must be sought at every stage. Each family is different and what suits one may not suit another. But, if you are worried about care costs – waiting till someone is about to go into care is much too late. The legal steps which may help avoiding care costs have to be completed long before the point when care is needed – the longer the better”.
