Can you still move home during Lockdown 3?

• You can still move home. People outside your household or support bubble should not help with moving house unless absolutely necessary.

• Estate and letting agents and removals firms can continue to work. If you are looking to move, you can go to property viewings.

• Follow the national guidance on moving home safely, which includes advice on social distancing, letting fresh air in, and wearing a face covering.

For a fixed fee conveyancing quote please call 01524 386 500.

The ‘Do Not Resuscitate’ decision - who makes this?

With the recent pandemic, and the significant media coverage relating to coronavirus deaths, many of us have become more concerned about our future care, and that of our loved ones, especially if a difficult decision had to be made as to whether or not to resuscitate.

Understanding how the law works in relation to a ‘Do Not Resuscitate’ decision can help to provide us with some much needed peace of mind, and even allow us to make suitable provision in advance to ensure that, if the time came, our dying wishes would be honoured.

What is a ‘Do Not Resuscitate’ order?

A ‘Do Not Resuscitate’ order is an order not to attempt cardiopulmonary resuscitation, more commonly known as CPR. This is an emergency life-saving procedure, typically combining rescue breaths, chest compressions and even electric shocks, that can be carried out when someone has ceased breathing and their heart has stopped beating.

However, when someone’s breathing and heart stops because they are dying from an advanced and irreversible condition, vigorous physical intervention by way of CPR can actually deprive them and those close to them of a dignified death. For some patients this may prolong the process of dying and, in doing so, prolong or increase their suffering.  

As such, a ‘Do Not Attempt CPR’ (DNACPR) decision can be made and recorded in advance, to guide those present if a person subsequently suffers a cardiac arrest. 

Who makes a ‘Do Not Resuscitate' decision?

While you still have mental capacity as a patient, you can accept or refuse life-sustaining treatment in a number of different scenarios. For example, you might decide that you don’t want to be given antibiotics for a life-threatening infection if you’re suffering from terminal cancer.

It’s only when a patient loses mental capacity that decisions relating to medical treatment become more difficult. This means that if you lose the ability to make your own decisions, for example, you are unconscious or otherwise too poorly to participate in any discussion, unless you have clearly set out your wishes in advance, the decision as to whether or not to resuscitate will need to be made by the leading physician in charge of your care. 

In these circumstances, although advice will usually be sought from your next of kin as to what’s in your best interests, the final decision will ultimately lie with the healthcare professionals.

Can a ‘Do Not Resuscitate’ decision be made by family?

Your family cannot refuse life-sustaining treatment on your behalf, not unless you have specifically granted them this power by way of a Lasting Power of Attorney (LPA).

An LPA allows you to appoint an attorney, providing them with the power to make decisions about your health and welfare should you lose the capacity to make these decisions for yourself. It is up to you who you appoint, for example, a relative or close family friend. You can also appoint more than one person, where decisions about your daily care routine can be decided by one attorney, and the bigger decisions about life-sustaining treatment made jointly.

You can record your wishes while you are mentally well, so that any attorney acting on your behalf has some guidance on what decisions you would like to be made. You can also make an ‘Advance Decision to Refuse Treatment’ (ADRT), or a Living Will, in clearly defined circumstances. This will let your family, carers and health professionals know your wishes about refusing treatment if you're unable to make or communicate those decisions yourself.

This will be a legally binding decision that cannot usually be overridden by either your family or your physician.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Can intellectual property be included in my will?

Intellectual Property is a commercial asset that can form a valuable part of your estate after you die, especially if you’re an artist, musician or author, or even say, a software developer or business owner. In the absence of other more tangible forms of property, this could represent a significant proportion of the overall assets that you leave your loved ones. 

Below we look briefly at some of the key considerations for intellectual property owners when bequeathing the rights to their intellectual creations, including who you’d like to benefit and how you’d like any intellectual property to be dealt with after your death.

What is intellectual property?

Intellectual property refers to something that has been uniquely created, such as things written, created or produced; the design or look of anything that has been produced; or even the name of a brand or product. This can include inventions, innovative designs, works of art, a piece of music or writing, computer programs, or even symbols or images used in marketing. 

Intellectual property law grants the creator or owner exclusive rights over their intellectual asset(s) for a fixed period of time, where in some cases this protection can span several decades.

Throughout this period of exclusivity, intellectual property rights can be bought, sold, licensed, mortgaged or otherwise assigned. This means that your creation will have an intrinsic value in itself, in addition to any income generated from allowing others to exploit the rights relating to it, for example, through license agreements to use a software program or royalties to play a song on the radio. 

How to bequeath intellectual property?

When bequeathing intellectual property in your Will, you need to consider not only the value of any creation, but also the nature of any legal rights relating to it. These could include, for example, patents, copyright, design rights and trademarks.

Whilst a creation itself may be successful, it is often these additional layers that are most valuable, especially where these rights give rise to a potential valuable source of income for the subsequent owner(s) in years to come. This means that due consideration must be given to how these rights will be distributed amongst any beneficiaries.

By way of example, copyright is a collection of rights automatically afforded in relation to various artistic creations, including music, books, films and paintings. Here, the law affords protection over the creation for the lifetime of the maker, plus an additional 70 years from the end of the year in which they died.  

This means that the right to benefit from copyright can be bequeathed in your Will. This could be left to one person specifically, or divided between multiple people in separate shares. If you have multiple works, and therefore copyright within multiple sources, these could again be left to either one person or divided between several different individuals.

You could also consider a trust arrangement for ring-fencing any intellectual property rights. By using a trust mechanism, you can assign appointed trustees with the task of utilising these rights for the benefit of chosen beneficiaries, whilst continuing to exercise some control over your creative legacy even after you die.

Ensuring that your loved ones benefit from any intellectual property in the way that you would want can all be achieved with the right legal advice and a well-drafted Will.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Firm Donates To St John's Hospice

BSG Solicitors has donated £200 to St John’s Hospice for their Cuddle Bed Appeal.

Director Rebecca Lauder commented:

“We saw the Cuddle Bed appeal on social media and really wanted to help.  I think whether you are a person who likes to hug or not, the last year has made us all realise how important physical contact is and just how much better a cuddle can make you feel. 

St John’s Hospice do such wonderful work and a lot of my clients say they couldn’t have got through such difficult times without them. Like all charities, their charitable donations have been impacted significantly and we need to do all we can to support these vital services.”

Pictured above L-R Natalie Santamera from St John’s Hospice and Rebecca Lauder.

Protecting your life assurance policy for your loved ones

A life assurance policy will often form an essential part of estate planning, where policy proceeds can be used to provide the necessary funds to see your loved ones through the estate administration process, until other money and assets can be released. It may also be sufficient to set them up financially for their future or, at the very least, maintain or improve their standard of living.

That said, where a life assurance policy has not been written into a trust prior to death, this will automatically be treated as part of your legal estate after you die. This means that the policy proceeds will not usually be made available until a grant of probate has been obtained, causing unnecessary delay in gaining access to these funds.

It also means that where the value of your estate exceeds the relevant threshold, the policy will be subject to inheritance tax in the same way as any other estate asset.

What estate planning steps should I take to protect my policy?

By using a trust mechanism for your life assurance policy, this will help to avoid going over the inheritance tax threshold and will allow your loved ones to bypass probate, at least in respect of this particular asset. Probate is the legal process of granting your personal representatives the authority to deal with your possessions. 

A trust essentially allows you to set aside an asset, in this case the proceeds of your policy, to benefit a specified person or people. These are known as the beneficiaries. By putting a policy into a trust you can control what happens to the payout from a policy in the event of your death, in some cases providing an immediate tax-free lump sum for your beneficiaries, depending on the type of trust used.

What types of trust can be used to protect my policy?

An absolute trust is ideal for where you would like to name a specific beneficiary or beneficiaries, such as your spouse and/or any children. This type of trust will give each named beneficiary an absolute entitlement to a fixed share of the proceeds on the death of the policyholder, in this way ensuring that the trust fund is paid directly to your loved ones rather than to your legal estate. This means that the money can be released without the grant of probate and will not usually be taken into account for inheritance tax purposes.

In other cases, especially where your children are under 18, you may prefer the flexibility of a discretionary trust. This will again allow you to name a number of beneficiaries, although none of them will have an absolute entitlement. Under a discretionary trust your trustees have a high level of discretion about which beneficiaries to pay and when, although you can provide them with a letter of wishes outlining your intentions as to how the trust should be administered.

The discretionary trust can be useful in the case of parents or grandparents who wish to benefit future generations, depending on the stage that each potential beneficiary has reached in their life when the policyholder passes away.

What advice should I seek when protecting my policy?

If you are considering putting a life assurance policy into trust, you must always seek advice from an independent legal advisor, as the practical aspects and advantages will vary depending on the type of policy and your situation.

It is also worth noting that in some cases there may be tax implications when putting a policy into trust, especially when using a discretionary trust mechanism, so it’s important to secure expert advice tailored to your particular circumstances.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

How and When to Remove a Personal Representative

When a loved one dies, you may not necessarily be appointed to administer their estate. The job of distributing the deceased’s wealth and worldly belongings may be left to another relative or close family friend, a solicitor or other independent professional, or even a combination of some or all of these people.

That said, as a beneficiary of the estate, this does not leave you entirely powerless, especially where the deceased’s Personal Representatives are not handling matters as you would expect. It may even be the case that you’ve been appointed as one of the people to handle the deceased’s estate, but you’re not happy with the way in which another representative is behaving. 

Below we look at the rules relating to Personal Representatives, including the grounds for removing and substituting an Executor or Administrator, and how to go about doing this.

What are the grounds for removing a Personal Representative?

A Personal Representative is someone who has the legal authority to administer a person’s estate after they have died. In England and Wales there are two types of Personal Representative: an Executor and an Administrator. An Executor is a Personal Representative named in the deceased’s Last Will and Testament, appointed during the testator’s lifetime to undertake the job of administering and distributing their estate after they die, whereas an Administrator is someone who acts when there is no valid Will in place and is often the deceased’s next of kin.

In either case, however, those appointed to handle the deceased’s estate will not always act, or be capable of acting, in the best interests of the beneficiaries. As such, if you believe that the estate is not being properly administered, this may necessitate an application to the courts to have the Personal Representative removed and, where necessary, substituted.

Grounds for removal can be varied, but commonly relate to issues of either conduct or capability. These could include, for example, where there is evidence of:

• A potential conflict of interests between the interests of the Personal Representative and their obligations to the deceased’s estate

• A lack of honesty or fidelity on the part of a Personal Representative

• A delay in the Personal Representative acting, or otherwise causing undue delay in administering the deceased’s estate

• A Personal Representative endangering estate property in some way, for example, through poor or incompetent financial decision-making.

The existence of poor relations between the Personal Representatives, or between the representatives and the beneficiaries, can also support a case for removal, but only where there is clear evidence that the degree of animosity or distrust is likely to adversely affect the proper administration of the estate and the welfare of the beneficiaries. It is important to note that while friction or hostility between the parties is a relevant consideration, it is not of itself, a reason for the removal of a Personal Representative.

How can you apply to have a Personal Representative removed?

In circumstances where you believe that the deceased’s estate is not being properly or competently administered, and agreement cannot be otherwise reached, then an application can be made to the High Court to remove or substitute one or more of the Personal Representatives pursuant to section 50 of the Administration of Justice Act 1985. An application can be made under section 50 by either an existing Personal Representative of the deceased or a beneficiary of the estate.

Where it can be proven that a Personal Representative has failed to administer and distribute the estate correctly, the court may exercise its discretion to remove them. However, given the wide discretion conferred on the court in these cases, there are a number of additional factors that may be taken into account including, for example, whether the Personal Representative was appointed by the Testator, as well as the likelihood of increased administration costs.

There must be clear and compelling reasons to remove a Personal Representative. This means that the court must be satisfied that these factors would adversely affect the administration of the estate and the welfare of the beneficiaries. The court must also be satisfied that any additional factors do not weigh more heavily in the balance, especially if the cost of any replacement representative is likely to be disproportionate to the problem complained about.

Needless to say, seeking to amicably resolve any issues relating to the conduct or capability of a deceased’s Personal Representative will often represent a more cost effective and quicker solution than seeking recourse through the courts. Before making an application to remove a Personal Representative, it is always best to first seek expert legal advice.

Our private client team can be contacted on 01524 386500 or email enquiries@bsglaw.co.uk

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Can I Still Move House?

As far as we currently understand the answer is yes, though we will of course continue to monitor the situation. Our conveyancing department will continue to progress existing matters and if you require a quote for a new move please call 01524 386500.

Robert Jenrick, Secretary of State for Housing, Communities and Local Government made this statement via Twitter:

 “Yes – the housing market will remain open throughout this period. Everyone should continue to play their part in reducing the spread of the virus by following the current guidance.

• Renters and homeowners will be able to move

• Removal firms and estate agents can operate

• Construction sites can and should continue

• Tradespeople will be able to enter homes

But all must follow the Covid safety guidance”

BSG Expand Commercial Property Team

BSG Solicitors has appointed Deborah Turner as Head of Commercial Property and is also joined by Emily Shea to support our growing client base.

Deborah joins from Napthens where she was a part of the commercial property team in Preston for four years. Prior to that she spent eight years at Brabners as an Assistant Solicitor.

Deborah is experienced in a wide range of commercial property matters involving sales, purchases and leases. She has a particular expertise in landed estate work, advising on lettings and land purchases. She also has experience in public authority work such as property acquisition, sales and granting leases to other authorities.

Emily Shea joins as a Paralegal from Vincents Solicitors where she worked across the commercial property and private client departments. She is currently studying to become a Solicitor using the CILEx pathway.

Pippa Weld- Blundell, Partner and Head of Residential Property Commented:

“Deborah and Emily bring with them experience and expertise across a broad spectrum of commercial property issues. Whilst it has been a challenging year for most businesses, we are still seeing plenty of commercial activity from both our Preston and Lancaster branches.

Deborah added:

“I’m delighted to have joined BSG Solicitors and to have Emily move to the firm at the same time has been ideal. We have plans to develop the department further and look forward to meeting with new and existing clients over the next few months.”

Pictured L-R: Pippa Weld-Blundell, Deborah Turner, Emily Shea

When is a statutory will needed?

A will is an important document that, assuming we are of sound mind to make it and understand its implications, can be used to set out how our belongings will be distributed after we die. But what if someone has money, possessions and property but they lack the mental capacity to make a will?

Below we look at how a statutory will can provide the loved ones of someone lacking testamentary capacity with a suitable way forward.

What is a statutory will?

A statutory will is a will that is overseen by the Court of Protection. This court has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

In considering the contents of any statutory will, the court will have regard to the personal circumstances of the individual, including any feelings or wishes they might have previously expressed that could be relevant to the distribution of their estate, as well as the views of those closest to them.

It is this careful and thorough assessment of an incapacitated person’s best interests that can bring the necessary peace of mind for the loved ones of someone who no longer has the capacity to make or amend their own will.

How is a statutory will put in place?

If you would like to make or amend a will on behalf of someone who can longer do this for themselves, for example, because they have become incapacitated through illness or injury, you will need to apply to the Court of Protection.

You can apply for a statutory will in circumstances where the person is not able to understand what making or changing a will means; how much money they have or what property they own; or how making or changing a will might affect the people they know, including those mentioned in the will or those left out.

That said, someone who has merely lost the mental capacity to manage their own finances may still have the ability to make or amend a will. As such, the Court of Protection will need medical proof that the person is lacking testamentary capacity. You will also need to provide various documents in support of an application, including a copy of any proposed will or amendments and details of the people who would inherit under the terms of any existing will or the person’s intestacy who will be joined into the application to the Court. 

The Official Solicitor may be appointed to act on behalf of the person lacking testamentary capacity and the application will be scrutinised by the Court.  If it is contested (perhaps by a beneficiary of any existing will) it could ultimately be decided by a court hearing. 

An application for a statutory will can therefore often be a difficult, expensive and protracted process and it is important to consider carefully the merits of the case before the application is made.  However, if the deceased’s estate is likely to be of significant value or there are other complicating factors, it can be advisable to apply to put place an appropriate statutory will.

What if someone dies without a statutory will?

If a loved one who has become incapacitated dies without a statutory will, any will that existed prior to their illness or accident will usually still stand. If, on the other hand, they die intestate, ie; without having a will in place at all, certain rules will come into play here. These are known as the rules of intestacy, where no protection whatsoever is offered under these rules for unmarried partners.

Further, in circumstances where the deceased was married or in a civil partnership at the time of death, depending on the value of their estate, this may mean that no provision is made for the deceased’s children.  Or, if the deceased left minor children who inherit under the terms of the intestacy, they will inherit on reaching the age of 18 years regardless of whether this is appropriate or not. 

Another factor which may be relevant is where there has been no provision made for someone who could expect to receive a share of the deceased’s estate.  This might relate to a spouse or partner, a child or a person who has been maintained by the deceased prior to the death.  In which case they would have no option but to make a claim against the deceased’s estate under the Inheritance (Provision for Families and Dependants) Act 1975.

It is therefore important to seek expert legal advice as soon as possible to ensure that adequate financial provision is made for any dependants and loved ones of the incapacitated person by way of a statutory will.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

The deliberate deprivation of assets

Paying for care home costs can be a real concern as we get older and become more incapacitated, especially when we would like our children to inherit or benefit from the sale of the family home after we are gone. So naturally, many of us look to ways in which we can mitigate our liability to pay for any care.

However, when means testing what money a person has – so as to assess the extent of his or her own liability to contribute towards these care costs – the local authority may treat any property and savings that have been gifted or transferred to someone else as a ‘deliberate deprivation of assets’.

What is a deliberate deprivation of assets?

In circumstances where a person requires permanent residential care, the local authority will carry out an assessment of their means, including any savings or property, to determine whether or not they are eligible for financial assistance. Generally speaking, the local authority will help to pay for care costs if a person is assessed as having capital of less than £23,250.

When undertaking this means test, the local authority will not only look to any existing property that a person owns, but also any property they have previously owned, especially where there is a possibility that this has either been gifted, transferred into a trust or sold at a knockdown price to their adult children.

In this way, the local authority will seek to establish if someone has disposed of any savings or property to purposely bring them below the means test threshold.

How will deliberate deprivation be decided?

In the local authority’s decision-making process, much will depend on the timing of any disposal of savings or property prior to being means tested, where a gift or transfer will not usually be seen as a deliberate deprivation of assets if:

• A person is fit and healthy at the time of the disposal

• Had no reasonable expectation of the need for residential care, and

• Had a legitimate reason or transferring the asset(s) to someone else.

If, on the other hand, these requirements are not met, the local authority is likely to suspect, and ultimately decide, that the avoidance of care costs was the motivation behind making any gift or otherwise disposing of the property.

It is worth noting that even if you gave away any savings or property a long time ago, it is still possible that the local authority could make a finding of deliberate deprivation if it is clear that the main reason for you reducing your assets was the avoidance of care home costs in the future.

What will a finding of deliberate deprivation mean?

If the local authority decides to treat any disposal of savings or property as a deliberate deprivation of assets, your care home costs may be calculated as if you still owned the assets in question, notwithstanding that you have lost the benefit of being able to utilise these. This could leave you with a very limited choice of affordable care homes available to you when the time comes.

As such, given the risk of being found by the local authority to have intentionally reduced your assets when assessing your eligibility for financial assistance, and being left without the necessary funds to ensure a decent quality of life, expert advice should always be sought prior to making such a gift.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.