This is in part to do with the fact that 40% of British adults do not make Wills and the difficulty that this so often causes. It is hoped therefore that 'electronic Wills' makes the entire process more convenient and in turn, something more likely to be undertaken.
While we agree that everybody should have a Will, the proposed changes are concerning insofar as they leave open to what we would argue is a huge potential for abuse.
Currently, to make a valid Will an adult must have the necessary ‘testamentary capacity’ and intention and must observe all legal formalities when executing (signing) their Will.
It is in writing, signed by the Testator (the person making the Will) or some other person at their direction (the latter only in very limited circumstances);
It appears that the Testator intended by that signature to give effect to the Will;
The signature is made or acknowledged by the Testator in the presence of two or more independent witnesses at the same time;
And each witness signs the Will or acknowledges the Testator’s signature in the presence of the Testator.
In addition, a Will will not be valid if the Testator is subject to undue influence or pressure by somebody else to make it.
The above formalities clearly intend to safeguard the Testator from these very matters; particularly the requirement for independent witnesses. If a Testator is no longer required to adhere to the above, could we ever be certain that they intended what is written in their Will? Could we even be sure that the Testator had any knowledge of the content of their Will? It could easily be assumed that an electronic signature may not have come from the Testator himself, and it is not beyond the realms of possibility to suspect that some (exploitative) relatives or friends of especially vulnerable persons such as the elderly or unwell could set up and sign a Will on the Testator’s behalf.
Whilst handwriting could be analysed if similar concerns were raised, a digital footprint would arguably be much more difficult to verify.
The proposed changes could make these issues more prevalent and conversely, the entire process could become more complex. While indeed allowing e-Wills might encourage greater numbers to make a Will, the administrative process (the period following death) could become increasingly marred by accusations of family members as to the validity of that Will in the very first instance. This, we believe would achieve the opposite of what the Law Commission intends.
Whether these proposals take effect and however the Will making process continues to adapt, it is absolutely our view that every adult should make a Will to ensure that their property and/or assets pass in accordance with their wishes on their death.
Our Wills and Probate Department specialise in the drafting of Wills, meaning that they are able to advise clients on how best to capture their particular wishes. Our team will always take instruction direct from the Testator to guarantee as far as is possible that the documents are made free from any outside pressure or undue influence, and are available to assist with the signing of the Will to ensure that all necessary formalities are complied with.
- A simple, single Will (single person) - £130 plus VAT
- A single Will to include a right of residence, life interest, or discretionary trust - £300 plus VAT
- Simple mirror Wills (two persons) - £200 plus VAT
- Mirror Wills to include right of residence, life interest, or discretionary trusts - £600 plus VAT
- Severance of joint tenancy (if required) - £100 plus VAT per property
As of 1st February 2018, it was possible for a person having applied to register an LPA - or Lasting Power of Attorney - (for both property & financial affairs and health & welfare) or EPA - or Enduring Power of Attorney - between 1st April 2013 and 31st March 2017 to claim a partial refund of the fees paid for doing so.
It also applies to those whose fees were already remitted (reduced by 50%) at the time of application, as well as repeat applications (where an additional fee was charged).
Fees recoverable depend on the application type and year in which it was made, but will range from £17 to £54.
A donor (the person having made the LPA or EPA) or indeed their attorneys may apply for the refund as can personal representatives of a donor who has subsequently passed away.
Given the sums involved, the Office of the Public Guardian will not be dealing with solicitors acting on people’s behalf to claim the refunds due.
They have however made assurances that making a claim is quick and simple - and that they are readily on hand to assist - see full details visit the claim form here online via the www.gov.uk website.
In summer 2017, controversial comments regarding Lasting Powers of Attorney by retired Senior Judge Denzil Lush proved quite the talking point.
His main gripes appeared to be that:
1. They are marketed on the basis that the alternative Deputyship application to the Court of Protection is ‘bad’, and
2. They are vulnerable to abuse; he made particular mention of this being by ‘unscrupulous’ children.
A Lasting Power of Attorney (LPA) is a legal document made by a person (the ‘donor’) while they are mentally able, to appoint another person or persons (the ‘attorneys’) to essentially step into their shoes and act in their affairs should they become mentally incapable.
There are two types; one dealing with property and financial affairs and one with health and welfare affairs.
An LPA can only be made while somebody has mental capacity.
An LPA can only be used once it is registered with the Office of the Public Guardian (https://www.gov.uk/government/organisations/office-of-the-public-guardian). Most people apply right away to ensure that they are available immediately when needed.
The Office of the Public Guardian typically takes 8-12 weeks to register the documents and charge £82 per document (a maximum of £164 per person).
What is a Deputyship?
An application to the Court of Protection for a Deputyship Order is instead made by the would-be deputy because the ‘donor’ lacks the mental capacity to make a valid LPA.
The same two types of order are available, but a health and welfare order is more difficult to obtain.
It can take upward of one year to obtain a Deputyship Order, just when it is already needed most.
Court fees for just one Deputyship Order are in the minimum sum of £400.
It is definitely fair to say that deputies are held to higher ongoing accountability in their roles, mainly by the filing of annual accounts and payment of a deputy bond which is like an insurance policy protecting the vulnerable person’s assets against possible misuse. That said, the very reason for these safeguards is the fact that that person cannot (and indeed may not have, had they undertaken an LPA while still able) choose or consent to the deputy dealing with their affairs.
Cunningtons' opinion remains that the advantages of an LPA far outweigh any possible disadvantage, and the current Public Guardian, Alan Eccles, has been similarly quick to respond to former Judge Lush’s comments, pointing out that of 2.4 million registered Lasting Powers of Attorney; just 92 suspected cases of financial abuse had been bought before the Court of Protection by summer 2017. This equates to just 0.0038% of all of them and even within this small number, not all attorneys were guilty of any wrongdoing.
It is commonly assumed that a spouse or partner will be able to deal with our finances and property automatically if we should ever become unable, just as in the same way most people think that next of kin will be able to make decisions in relation to health or care needs.
This is inaccurate and loved ones often find far too late that they are unable to deal with the simplest and smallest of transactions such as paying a utility bill or even continuing to deal with a bank account held in joint names with a person who has lost mental capacity.
This Times Money article on Times Money (https://www.thetimes.co.uk/article/give-careful-consideration-to-a-power-of-attorney-2cfr6ssg5) makes mention of a gentleman unable to cancel his wife’s mobile phone contract after incurring fees of £1,000 despite her not having used it. This was because he did not have the relevant permission to look after her finances. You might agree that this is problematic enough, but consider the fact that a Deputyship application to acquire that permission would take at least 8 months. A previously made and registered LPA appointing him attorney would have allowed him to resolve the issue immediately.
Despite attorneys not being subject to quite the same rigmarole as deputies under a Court of Protection order, an LPA can be tailored to an individual’s own circumstances and include their specific preferences and/or instructions. An LPA can even direct that application to the Court of Protection is necessary for an attorney to be able to undertake a particular, probably significant, transaction. The key here, as we would argue it has always been, is to ensure that appropriate legal advice and drafting is undertaken to ensure that an LPA accurately and fully accords with the wishes of the donor.
Our Wills and Probate Department specialises in the drafting of Lasting Powers of Attorney, meaning that they are in a key position to advise clients how best to capture their particular wishes.
Lasting Powers of Attorney are lengthy documents and contain lots of legalese which make them difficult for a lay person to navigate, let alone complete. Cunningtons will ensure that this is done properly and what is more, always takes instruction direct from the donor to guarantee as far as possible that the documents are made free from any outside pressure or influence. This means that vital decisions regarding the possible future management of the donor's affairs are theirs - and theirs alone.
Without registration: £200 plus VAT
With registration: £300 plus VAT plus Office of the Public Guardian fee of £82
Without registration: £200 plus VAT
With registration: £300 plus VAT plus Office of the Public Guardian fee of £82
With registration: £400 plus VAT, plus two registration fees of £82
Local solicitor Bryony Wilmshurst from Cunningtons LLP based in Braintree, Essex has joined fellow members of Solicitors for the Elderly in warning against proposals to turn the LPA registration process fully digital.
An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about their finances and property on their behalf. Under the current process, a ‘wet signature’ – the physical signing of the document – is required by individuals who wish to register an LPA. But in a paper released on Thursday, the Financial Conduct Authority (FCA) called for a fully digital system, whereby documents could be registered completely online.
Bryony Wilmshurst said: “We are extremely concerned by the FCA’s push for fully digital powers of attorney. Although we welcome initiatives that make LPAs more accessible, the security of older and vulnerable people is paramount. Under the current system, the FCA’s vision of a secure, end-to-end digital LPA registration process is simply not possible.
“Removing the requirement of a wet signature has the potential to put thousands of people at risk of fraud and financial abuse. An LPA requires the understanding and consent of the donor, but without the witnessing of a physical signature, what is to stop a family member or friend registering a document on someone else’s behalf, perhaps even without their knowledge?
“LPAs are extremely powerful and complex documents, and the prospect of being able to take control of someone else’s bank account and even their property with the few clicks of a button is frankly reckless.”
Solicitors for the Elderly is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers, and chartered legal executives, who provide specialist legal advice for older and vulnerable people and their families. Last year, the organisation released a report raising concerns around the current online system for LPAs, which it claims already leaves older and vulnerable people open to abuse.
LPAs are processed by the Office of the Public Guardian (OPG), a public body under the Ministry of Justice. The OPG has previously considered changing the LPA application process as part of a gradual move to take all its processes online.
To find out more about LPAs go to: www.cunningtons.co.uk