Price and Kelway Wills and LPA's
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Published on: Mar 4, 2016
Transcripts - Price and Kelway Wills and LPA's
Price and Kelway
Wills and Lasting Powers of Attorney
2nd February 2016
Who am I?
• Iestyn Scourfield
• Became a qualified Solicitor yesterday!
• Cardiff University and Cardiff Law School
• Interests – Sport, Poker, Films, Conspiracy Theories…
• Main practice areas:- Wills, Administration of Estates, Tax planning,
Small claims civil disputes, Conveyancing, Commercial Law
• Little known fact:- My parents are both twins...
• Wills in general
• Wills – second marriage, children from previous relationships
• Wills – vulnerable beneficiaries
• Lasting Powers of Attorney – What, why and how?
Why make a Will?
• A will makes it much easier for your family
or friends to sort everything out when you
die – without a will the process can be more
time consuming and stressful.
• If you don’t write a will, everything you own
will be shared out in a standard way defined
by the law – which isn’t always the way you
• A will can help reduce the amount of
Inheritance Tax that may be payable on the
value of the property and money you leave
• Writing a will is especially important if you
have children or other family who depend
on you financially, or if you want to leave
something to people outside your
• Appoint a person to organise your estate
and to follow your instructions
Your executor will do their best to make sure your wishes are
followed, as long as they don’t involve breaking the law
• In 2011, 34% of all marriages in England
and Wales took place between couples
where one or both spouses had been
previously married. Whether the previous
marriage ended in death or divorce, many
of these couples will have children from
• Remarriage cancels any existing Will that
is in place, and the more complicated
family set-up means that consideration of
new Wills is required
• Second marriages often leave spouses
torn between the need to provide for
their present partner and ensure that
children from their previous marriage
receive an inheritance.
How are these
(1) Life interest Trust
(2) Division of assets into separate accounts
(3) Outright gifts
Life interest Trust
• Assets are placed into a trust for the lifetime
of a spouse/civil partner.
• They can benefit from the asset during their
lifetime or until a certain event (i.e. they re-
marry or enter permanent residential care)
• If the asset is property then they are able to
live in the property or benefit from the
• Cash/investments can also be written into
trust so that the lifetime beneficiary benefits
from the interest gained.
• You can control the ultimate destination of
your assets - whilst your surviving spouse still
retains the benefit of the trust in their
lifetime, for example by still living in the
house or by drawing income from other funds
held in trust
• Care home fee mitigation - funds and assets
held within a life interest trust are effectively
ring fenced from your spouses’ assets and
cannot be taken into account when assessing
your partner for care home fees, thus
protecting the assets
• Protected against bankruptcy - assets held in
the trust cannot be taken in the event of your
spouse's bankruptcy as they have no right
over the capital
• Frequently, the main asset will be the family
home. This is often owned jointly.
• Joint tenancy needs to be severed – Application is
made to the Land Registry to change the
ownership of the property
• Property is then held as tenants in common – This
can either be in equal shares or unequal shares
• Wills are drawn up to contain a lifetime trust (with
appropriate provisions) and eventual gift as
desired by the clients.
• Clients are satisfied that their children (or other
beneficiaries) will be provided for. Peace of mind!
These are beneficiaries:-
• with learning difficulties living at home with parents
• in receipt of disability living allowance
• unable to manage money
• who are prone to addiction
• in receipt of means-tested benefits
• subject to external influence
How to protect the beneficiary?
Simple Discretionary Trust
• This type of trust provides enough flexibility
that a trustee can distribute funds depending
on their needs at the time, but leaving the
money in the trust to look after a vulnerable
Disabled Person’s Trust
• special kind of discretionary trust that can be created
for a person who is incapable of looking after their
affairs or is entitled to a disability living allowance at
the highest or middle rate
• may include adults who have become unable to look
after themselves due to an illness or accident, such as
a brain injury
• individual with a learning difficulty or disability would
be named as the primary beneficiary of the trust and
other beneficiaries, such as other children for
example, would be named in a separate class of
• if the trustees decide to make a payment from the
capital of the trust to any one of the beneficiaries of
the trust they must also make the same payment to
the primary beneficiary
Advantages to a discretionary trust..
• Able to appoint up to four trustees to manage how the assets/money are dealt with.
• Can appoint family members who are familiar with the vulnerable person’s needs and
also appoint independent persons to ensure that appropriate decisions are made.
• Can give guidance via a letter of wishes which will outline what you would like to happen
after you are gone. Items to consider are pocket money, clothes and equipment, trips
and holidays, extra support, health care and living accommodation.
• This letter should explain the reason for setting up the trust, guidance on how it should
be used, and how the money should be distributed in the event of the beneficiary's
• None of the beneficiaries have an absolute right to all the money in the trust, nor the
income that comes from it – they only have a potential right. This means that the money
and any other assets in the trust will not be taken into account when assessing for
Lasting Powers of Attorney – What is it?
A Power of Attorney is a legal document
whereby a person gives another person or
persons authority to make certain decisions
on his or her behalf.
The two types of LPA
Property and Financial Affairs LPA
• This enables you to give
authority to another person(s)
to deal with your property and
• Property and Affairs LPA can be
used both when you have
capacity to act and when you do
not have capacity.
Health and Welfare LPA
• This enables you to give authority to
another person(s) to make health and
welfare decisions on your behalf, but
only if, and when you lack the mental
capacity to do so yourself. This can
also extend to giving or refusing
consent to the continuation of life
sustaining treatment, if you wish.
• Health and Welfare LPA may only be
used if and when you lack mental
capacity to make a welfare or medical
decision on your own behalf
In order to make an LPA you must:
•Be aged 18 years or over.
•Have mental capacity.
i.e. you are able to understand the full extent of the power you are
donating to your attorney.
•Be free from any undue influence or duress.
Who should I choose as my Attorney?
•Can be a family member, friend or a professional.
•Over 18 years of age.
•Not a bankrupt.
•Honest and Trustworthy.
• Your LPA must be signed by a Certificate Provider. This may be a
Doctor, lawyer or other relevant professional; or person who has
known you for at least two years who can certify you have the
relevant capacity to make an LPA.
• If you have not told anyone else apart from your Attorneys you
are making an LPA you will need two people to certify your
Including Restrictions and Guidance
• You may include restrictions on the use of your LPA.
• You may provide Guidance for your Attorneys
• Paying your Attorneys and out of pocket expenses
What happens if I have not made an LPA or an EPA?
• If you lack capacity to make a Lasting Power of Attorney, then it will be
necessary for an application to be made to the Court of Protection for the
appointment of a Deputy to manage your property and financial affairs. Can
be a family member, friend or a professional such as a lawyer or accountant
• Most care and treatment decisions can be made on your behalf without the
need for a court application. Only in very rare cases will the Court of
Protection appoint a Deputy for Health and Welfare
• Application fee £400.
• Assessment fee (one off on appointment) £100.
• Annual Bond fee (variable).
• Annual supervision fees of £320 are payable in arrears if the patient has
assets worth more than £18,000. For clients with less than £18,000 a
minimal supervision fee of £35.00 is payable.
If you or a relative or a friend would like professional legal advice about
making a new will, amending a current will or making a Lasting Power
of Attorney, we are able to help.