Inheritance harvesting: debunking myths around capacity and Lasting Powers of Attorney

Following Sue Mitchell’s recent BBC News story “The homeless handyman and the wealthy widow.  Love or something darker”, Una Angus, a Senior Paralegal in our Wills, Estate & Tax Planning Team, explores what families are able do under English law to provide protection to vulnerable relatives.

One of the most prevalent myths around mentally incapacitated individuals is that a person’s next of kin will be able to take decisions for them on an informal basis.  Legally that is not correct.  For example, if one of the parties to a joint bank account loses mental capacity, depending on the bank, the entire bank account could be frozen; the other party cannot just keep operating that account.

A Lasting Power of Attorney (LPA) is a formal arrangement, undertaken by deed, whereby one person (the donor) entrusts to another person (the attorney) authority to act in their name and on their behalf.

LPAs can be amended and replaced at any time whilst the donor has capacity. If the person concerned lacks capacity to prepare an LPA, an application for the appointment of a Deputy can be made to the Court of Protection. A Deputy may be a relative or a friend, a professional or a trust corporation.

It is also important that a will is put in place. Many individuals are not aware that a will is ordinarily revoked by a subsequent marriage and a marriage can’t be set aside retrospectively due to lack of mental capacity, meaning its effect will still have been to revoke any previous will the individual may have made and his or her estate will be subject to the intestacy rules.

If the person concerned lacks capacity to put a will in place, an application can be made to the Court for a Statutory Will.

We have looked after the affairs of our clients for generations and frequently act as attorneys and deputies for them.  We have a great deal of experience in this area of practice and if you require specific professional advice, please discuss with your usual contact in the firm or email the author at una.angus@ts-p.co.uk