How do I make decisions for my disabled child?

Posted on By Louise Polcaro
decisions for disabled child

Until a disabled child reaches the age of 18, parents (in most cases) will have parental responsibility for their child and, therefore, can make most decisions for them. However, once a child reaches 18 the legal position on decision making changes. Parents lose parental responsibility and no longer have any legal responsibilities or automatic rights to make decisions about their child.

In England and Wales, the starting point for a disabled individual and/or their parent to consider, with regards to decision making, is to assess each decision separately and establish whether your child is able to make this decision for themselves. This is a key principle of the Mental Capacity Act 2005 and it must be assumed that everyone has the capacity to make a decision for themselves unless it can be shown that they lack the mental capacity to do so.

If it is clear that your child isn’t able to make a particular decision, then the decision must be taken on their behalf and the Mental Capacity Act sets out how this must be done. The process will depend on the type of decision to be made.

Health and welfare decisions

Probably the most important type of decisions for your disabled child are those dealing with their health and welfare, for example medical treatment; where to live; what care is given; etc.

The person making the decision may vary depending on the type of decision required. It could be a carer, a health professional, a social worker or a parent. This person must consider a number of factors before the decision is made and the Mental Capacity Act states that any decision must be made in the child’s ‘best interests’.

It’s important to have a good understanding of the Mental Capacity Act and how the decision-making process should work when a decision needs to be made. Any person making a decision for your child should consider whether it is appropriate to consult others, including you as parents, for your views on what is in your child’s best interests.

If there is a dispute in the decision-making process, then attempts should be made to resolve these. It might be necessary to obtain a second opinion on a particular matter, or hold a ‘best interests’ meeting or conference with the relevant parties.

How does the Court of Protection fit in?

The Court of Protection has the power to make decisions on behalf of a person who lacks the mental capacity to make their own decisions or they can appoint a deputy who is given specific powers to make decisions on behalf of that person.

For most decisions that need making, following the Mental Capacity Act will enable decisions to be taken in the best interests of your child.  It is generally considered a last resort to apply to the Court.

The type of application made will vary depending on the circumstances at the time. The Court could be asked to make a decision about a particular matter, such as what treatment they should or shouldn’t receive. The Court can also be asked to appoint a deputy who will have certain powers to make decisions on your child’s behalf for a specific period of time.

In some situations, an emergency application can be made to the Court if a decision is required urgently and there is a risk of harm or loss to an individual.

Financial decisions

It is also important to think about what financial matters your disabled child may need help with. What assets do they have in their name? What income do they receive?

If your child is receiving benefits, then you should check with the Department for Work and Pensions if you are the appointee and, therefore, are the person responsible for managing these.

Any organisations where your child has assets may not allow you to manage those assets once your child is 18. For example, banks will require your child to take control of their account and they usually only accept instructions directly from the account holder.

If your child does not have the mental capacity to manage these assets, then you can apply to the Court of Protection to become their deputy for financial matters.

Any application for a deputyship will be considered by the Court and, if approved, they will issue a Deputy Order appointing the deputy and setting out what the deputy can and can’t do. The Deputy Order will then give you the necessary legal authority to manage your child’s financial affairs.

Who can help?

If you have any queries or concerns about how to make decisions for your disabled child, you should speak to a qualified professional, who will be able to advise on the best course for you and your family.

Katherine Miller TEP is a Director and Solicitor at Renaissance Legal

What is confirmation in Scotland?

Posted on By Louise Polcaro
confirmation,Scotland,inheritance

Confirmation is the Scottish equivalent of the probate procedure in England and Wales and Northern Ireland. It is granted by the Sheriff Court in the district in which the deceased was resident and provides the executors with authority to deal with the estate; whether it be closing bank accounts, selling property or transferring or selling shares.

While there are similarities with the probate procedure, there are also significant differences, principally in terms of the paperwork required.

For ‘small’ estates with a gross value of (currently) £36,000 or less, executors are entitled to free assistance with obtaining confirmation from the local Sheriff Court.

How do I apply for confirmation?

The process involves conducting a thorough examination of the deceased’s financial papers to draw together the information needed to complete the confirmation application form C1. This form accompanies the inheritance tax return and provides details about the deceased and the estate.

Where a person dies without a will, an application must first be made to the Sheriff Court to have an executor appointed and in most cases it will also be necessary to obtain an insurance document known as a Bond of Caution.  Legislation sets out who may be appointed as an executor in the absence of a will and it is important that the correct individuals are identified from the start.

The Form C1 includes a declaration by the executors confirming that the contents of the form are correct, to the best of their knowledge. As the declaration is similar to swearing an oath in court, it is crucial that full enquiries be made into the assets of the estate and into the deceased’s tax affairs.

Where inheritance tax is due, a copy of the signed confirmation application must first be submitted to HMRC along with the tax return, before being sent to the Court. The tax must be paid at the same time, either in full or as a first instalment where this is permitted. Once the application is submitted the Sheriff Clerk will check it and if satisfied, submit it to the Sheriff to issue the Grant of Confirmation.

How much will it cost?

Court fees are presently £276 for estates worth between £50,000.01 and £250,000 and £554 for all estates worth over £250,000. There is no court fee for estates with a gross value of £50,000 or less.

Separate charges ranging from £8 to £20 apply where individual ‘Certificates of Confirmation’ are requested, focusing on specific assets in the estate. These certificates are often used to speed up the ingathering process after Confirmation has been granted, as an alternative to circulating the original Confirmation document to each asset holder in turn.

The same fee will be charged again, in full, where it is necessary to amend the application after Confirmation has been granted, and care should therefore be taken to ensure that no assets are missed out or reported incorrectly.

It is crucial when obtaining confirmation that the specific procedures used in Scotland are followed. To ensure that the process runs as smoothly as possible, it is recommended that advice be sought from a suitably qualified advisor.

Jaclyn E P Russell TEP is a Partner and Head of Private Client at Stronachs in Aberdeen, Scotland

 

What is a living will?

Posted on By Louise Polcaro
Living will

The term ‘living will’ is often used to refer to what’s known as an ‘advance directive’ in Scotland, or an ‘advance decision’ in England, Wales and Northern Ireland. It is a written record of medical treatment that you may or may not wish to receive in the future. It only comes in to effect if you lose mental capacity or otherwise lose the ability to communicate your wishes.

A living will sets out your wishes for future medical treatment should you suffer from any one or more of a list of serious and irreversible medical conditions, including, for example, severe cancer or advanced dementia. Living wills typically state that you are not to receive life sustaining treatment, such as artificial feeding. While obvious pain and suffering is to be relieved, no attempt is to be made to prolong your life.

Benefits of having a living will

Many people have strong feelings about the medical treatment they may or may not wish to receive, if they were to suffer from a terminal illness. If you do, a living will would allow you to clearly communicate these wishes to your family and doctors at a time when you are no longer able to do so personally.

A living will can also help to alleviate your family’s distress at having to make difficult decisions about your medical care. In effect, it takes the decision outwith your family’s hands.

How is a living will given effect?

Unlike in England and Wales and Northern Ireland, where a living will is binding on doctors, in Scotland it is only one of a number of considerations that a medical team will take into account.  However, provided that it was granted while you fully understood the implications of signing it, a living will is highly persuasive and should be given effect.

Your living will would only be used if you lost the ability to communicate your wishes. This may be due to mental incapacity or a physical condition that prevents you from communicating.

Who should be notified?

You should make people aware that you have put a living will in place.

  • Your GP should be advised.  A copy of the living will can be placed on your medical records for ease of future reference.
  • You should tell your immediate relatives. Your next of kin may be consulted about your medical treatment if you are unable to communicate what your wishes are. It is important that your family are made aware of these wishes.
  • If you have a welfare power of attorney, your welfare attorney/s must be advised as they will be consulted about your medical treatment if you were to lose capacity.

Preparing a living will

Living wills are an increasingly popular estate-planning tool. It is extremely important that the document is an accurate and clear reflection of your wishes for future medical treatment. If considering putting one in pace as part of your estate plan, you should talk to a qualified professional. The charity Compassion in Dying can also provide further information and support, as well as free forms (online or via post), which, if completed correctly, are legally binding.

Jaclyn Russell TEP is a Partner in the private client team at Stronachs LLP in Aberdeen, Scotland 

What is the Residence Nil-Rate Band?

Posted on By Louise Polcaro
inheritance,house,

The Residence Nil-Rate Band (RNRB) is an additional allowance for inheritance tax for deaths occurring after 6 April 2017.

When does the Residence Nil-Rate Band apply?

In order to qualify, you must own a property or a share in a property that you have lived in at some stage, and that you leave to your direct descendants (including children, grandchildren or step-children). For estates over £2 million, the RNRB is reduced at the rate of £1 for every £2 over £2 million. In addition, it only applies on death and not on gifts or any other lifetime transfers.

How much is the Residence Nil-Rate Band?

The Residence Nil-Rate Band is set at £175,000 for 2021/22. These figures are per person, so a couple may benefit from double the allowance.

How does it work?

The RNRB value is limited to the lower of the value of the property left to direct descendants or the total RNRB available. The RNRB is applied to the estate first and then the nil-rate band (currently £325,000) is applied. Both the Nil-Rate Band (NRB) and the RNRB will be frozen until 5 April 2026.

If the value of the property is less than the RNRB, the balance cannot be offset against other assets in the estate. For example, if Mrs A dies and leaves her entire estate consisting of a property worth £350,000 and savings totalling £50,000, the total estate equals £400,000. From that, the RNRB of £175,000 can be deducted first, leaving £225,000, which is covered by the nil-rate band so there would be no inheritance tax to pay. However, if her assets were the other way round, i.e. a property worth £50,000 and savings worth £350,000, the situation would be different. In this case only £50,000 of the RNRB could be used, leaving £350,000 from which the nil-rate band can be deducted, with the remaining £25,000 subject to inheritance tax at 40%.

Can it be transferred?

Like the nil-rate band for inheritance tax, the RNRB can be transferred between spouses if it is not used in whole or part when the first spouse died, even if the first death occurred before 6 April 2017.

What happens if I downsize?

The RNRB is still available if you have downsized, given away or sold your home; this is known as the ‘downsizing addition’. For the downsizing addition to apply, you must have downsized to a less valuable home or ceased to own a home after 8 July 2015. Your former home would also need to have qualified for the RNRB if you had retained it and at least some of your estate must be left to your direct descendants. Calculating the downsizing addition is complicated, but it is generally the amount of the RNRB that has been lost because your former home is no longer in your estate.

Can I lose the Residence Nil-Rate Band?

The RNRB may be lost if you do not own a property at your death or if your direct descendants do not inherit on death. This means the RNRB can be lost if your property is left to some forms of trust, for example discretionary trusts or trusts for grandchildren where they cannot inherit until a specified age, for example 21. If the property is held in a trust prior to death, the RNRB will only apply if the death causes the property to pass to direct descendants, for example if a spouse has a right to live in the property during their lifetime (known as an interest in possession trust or life interest trust) and on their death it passes to their children without age restriction.

The RNRB can also be lost in whole or part if your estate exceeds £2 million. This is particularly important if you are a couple and individually your estates are less than £2 million but combined exceed this amount.

The RNRB will not be lost if a property is not specifically mentioned in a will, so long as it forms part of the estate on death. Nor will RNRB be lost if the property is sold during the estate administration by the executors.

Is there anything I should do?

It is worth speaking to a qualified advisor to review your will and any other arrangements you have made to see if any amendments should be made in light of this allowance.

Stacy Keech TEP is a Solicitor – Wills, Trusts and Probate at Coffin Mew Solicitors in Portsmouth, UK