Are you concerned about what will happen to your money and property if you lose your mental capacity?

You can lose mental capacity by suffering a brain injury, disease such as dementia or a traumatic event such as a stroke.  If you lose mental capacity you will lose the power to manage your own property and affairs.  This means that you cannot:

• Sell or transfer your home to anyone.
• Arrange contracts for the repair or upkeep of your property.
• Arrange buildings or contents insurance.
• Sell or transfer shares.
• Transfer money in or out of your bank account (if you have a joint bank account that account will be frozen to both you and your partner until someone is appointed to act on your behalf).
• Arrange life insurance.
• Arrange any contracts for holidays, buying furniture and equipment for your home.
• Engage in any business activities.
• Wrote cheques for food, clothing etc.

It also means that someone also may determine how and where you live and what care you receive.  However, you can make arrangements before you lose mental capacity that will ease your worries. 

You can create a Lasting Power of Attorney (LPA).  This is a legal document which enables you to appoint an individual now to make decisions on your behalf in the future if you are unable to make such decisions yourself.  This means that you can appoint your attorney now whilst fully able, making sure that this is an individual you trust to make the best possible decisions on your behalf.

There are two types of Lasting Powers of Attorney.  The first relates to your personal welfare.  Any individual or individuals you appoint to make decisions regarding your personal welfare can only begin to utilize this permission once you lack the capacity to do so yourself.  For example, should you have dementia or be placed in a coma.

The individual would then have the ability to make decisions on your behalf such as giving or refusing consent to certain types of health care or where and how you live.  Any decisions pertaining to life sustaining treatment must be expressly noted to your Attorney in the LPA document.  It can also incorporate decisions on more minor matters such as how you dress or the activities you are permitted to undertake.

The Lasting Power of Attorney is only effective if it has been registered with the office of the Public Guardians.

The second type of LPA is known as a Property and Affairs Lasting Power of Attorney and works in a very similar way but relates to the management of your property and finances.  Appointing an attorney in this capacity means that somebody will be able to carry out the mundane but essential tasks such as paying your bills or collecting your benefits and other income, assisting you by making telephone calls or writing letters on your behalf.

It is worth noting that a Power of Attorney relating to property and affairs can be used whilst you, are still fully able.  You do not need to have any diminished capacity. 

Enduring Powers of Attorney

For many years individuals in circumstances similar to those above drew up documents referred to as Enduring Powers of Attorney (EPA).  If you already have such a document you should note that this cannot now be amended.  If it is not registered with the Office of the Public Guardian it can still be used although it will need to be registered if your Attorney believes you may become mentally incapable.  However, the Enduring Powers of Attorney can now be supplemented with a Personal Welfare LPA so that both your property and affairs and your health and wellbeing are looked after.  Should you wish to make alterations to a previously held EPA, you will now need to replace that with a Property and Affairs LPA.  The existing EPA can be unregistered at any time assuming you have the mental capacity to do so, however if it has been registered it can only be revoked with permission from the Courts.

Power of Attorney

Consequently this can be extremely useful if you choose to travel overseas extensively or live overseas for part of the year.  Similarly it can be utilised simply to assist in everyday life where certain individuals may have some difficulty, for example, they have impaired sight ensuring that certain tasks are more difficult.  The appointment of any attorney with such power would ensure that somebody had the legal ability to assist with some of these tasks.

Important changes affecting people who die without leaving  a will have  been announced by the Government. These are likely to have far-ranging consequences for the majority of people in the UK who still do not have a will.

The new rules will come into effect in February 2009 and will mean that the survivng husband or wife will receive a maximum of £250,000 from the estate, no matter what it’s value, if there are surviving children.

This rule will also apply to civil partnerships;however, the rule will  NOT apply to unmarried couples living together.

If you are at all unsure about whether you need a will , wish to review your existing  will or have any enquiries about wills or probate matters generally please contact our Wills and Probate  experts .Obtaining the right advice now may prove invaluable to you and your family  in years to come.

It is now likely that the usual rules for possession will be relaxed following a recent directive from the Government but be warned…this does not mean you can now take a ” mortgage holiday”.

It simply means that the Courts are far more likely to be sympathetic to people genuinely trying to pay off  arrears.

Generally speaking a lender is entitled to issue possession proceedings if you are two or more months in arrers with your mortgage payments.

This means they can apply to the County Court to take legal ownership of your property . Even worse,they can then apply to evict you if you fail to leave the property voluntarily.

You should ensure that you make every effort to pay what you can realistically afford rather than pay nothing at all  because you are a few pounds , or possibly more, short. This will gain you far more credibility with the Court and increase your chances of a successful result dramatically.

If you do find yourself facing difficulties paying your mortgage ,you should certainly ensure that you take advice sooner rather than later. We are happy to advise on such cases having many years experience in successfully dealing with claims .You simply need to telephone, or e.mail if you prefer for an appointment to suit.