Asset protection planning is a legitimate form of wealth planning and tax planning.
Ansham White Solicitors can assist clients preserve and protect their property in advance of a claim or the threat of a claim after they pass away. Additionally, we can assist and offer advice in relation to Inheritance Tax.
The goal of asset protection planning is to provide an incentive for estate planning and tax planning in advance of a client’s death. We also advise where and when a claim may be asserted, and, ultimately, deter litigation after death.
Asset protection planning is not about avoiding taxes, keeping secrets, hiding assets, or defrauding creditors but is a mechanism for effectively managing your assets.
This is a legal, not a financial, communication. It is not intended to be nor should it be construed as, a direct or indirect invitation or inducement to any person to engage in investment activity. This firm is not authorised to deal with financial investment activities.
If you have been going through an illness, frailty due to old age or following an accident need legal advice about drafting a will, creating a Trust, Lasting Powers of Attorney, Probate or for any other services listed on our website, the last thing you want to do is have to travel to see a Solicitor.
In this case please call us and speak to the Solicitor over the telephone or correspond by e-mail, but it is generally much better to meet face to face.
We shall then arrange for either a home visit, hospital or skype call with you. We also offer visits at our local Hospices to take our clients instructions. Our empathetic staff is always here to help our clients make the right choices.
We at Ansham White Solicitors understand the difficulties faced by people who have been admitted at the hospital or are house bound. Our solicitors offer home and hospital visits in the comfort of your own home or during your recovery in hospital.
For more information about booking an appointment please call us.
If you are appointed as an Attorney for an Enduring Power of Attorney (EPA), Lasting Power of Attorney (LPA) or a Trustee, we can assist you in understanding your obligations.
As an attorney, your legal responsibilities include:
- Acting in the donor’s best interests and taking reasonable care when making decisions on their behalf.
- Acting in accordance with the terms of the LPA (see below).
- Helping the donor to make their own decisions where possible, rather than simply taking control.
More detailed information about lasting power of attorney responsibilities is available in the Mental Capacity Act Code of Practice.
We strongly advise that you obtain a copy of this guidance, as you must take it into account. As part of the process of making the LPA, you will be required to sign a statement confirming that you understand your legal responsibilities as an attorney. As part of our work we routinely advise the attorneys on their obligations and duties before they take on this important role.
If you do not perform your duties you could be ordered to compensate the donor for any losses they suffer. You could also face criminal charges if you ill-treat or willfully neglect the donor.
It is also important to note that an LPA does not give you unlimited authority to make decisions on behalf of the donor. A lasting power of attorney can be either a property and financial affairs LPA – which allows the attorney to make decisions about finances and property – or a health and welfare LPA (healthcare and personal welfare decisions).
- You cannot act under an LPA until it has been registered with the Office of the Public Guardian.
- An LPA may only authorise you to act if the donor lacks the mental capacity to make the decision (see below). This restriction automatically applies to any health and welfare LPA.
- If you have been appointed under a health and welfare LPA, you can only take decisions on whether the donor accepts ‘life-sustaining’ treatments if the LPA specifically says so.
- An LPA may also include further restrictions on the decisions you can take, for example that you cannot make gifts.
- The donor may discuss their wishes with you, or include guidance in the LPA. You should take this guidance into account when making decisions. When appropriate, you may also need to consult with the donor’s family or friends.
- An LPA may appoint more than one attorney. If so, the attorneys may be required to make some or all decisions together (ie: unanimously) rather than independently.
- If the donor has made more than one LPA (or other kinds of power of attorney), you may need to cooperate with other attorneys where your authorities overlap. You should take advice if the extent of your authority to make decisions independently is unclear.
If you are only authorised to act if the donor lacks mental capacity, you will need to check whether the donor has the capacity on a decision-by-decision basis. For example, the donor might be capable of making small decisions (such as what to wear), but not complex decisions about where to live or financial issues.
In each case, you should start from the assumption that the donor is capable – and look for ways to help the donor make the decision – rather than just taking control.
To help decide whether the donor lacks capacity, you can apply a two stage test:
- Is the donor’s mind or brain impaired or disturbed in some way?
- Does this make the donor unable to take the decision at the time it needs to be taken?
If you are unsure whether the donor has capacity, you can get an expert opinion (eg: from a doctor). Bear in mind that simply disagreeing with you, or making foolish or eccentric decisions, does not mean that the donor lacks capacity.
- If you feel that a decision needs to be taken that is not within your powers, you can apply to the Court of Protection. For example, if you are an attorney under a property and financial affairs LPA and want to make large gifts as part of an inheritance tax planning strategy, you are likely to need court approval.
- If the donor dies, you should send the LPA and a copy of the death certificate to the Office of the Public Guardian. You have no further power to act for the donor (unless you are appointed as an executor under the donor’s will).
- If you no longer wish to be an attorney, you can ‘disclaim’ the role. If the LPA has not yet been registered, you should give formal notice to the donor. If the LPA has been registered, you must contact the Office of the Public Guardian.
If you need clarification on any of the issues raised please call us for a free chat.
The Court of Protection (COP) make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).
For this reason we encourage our clients to consider a Lasting Power of Attorney before such an event. The costs of going to the Court of Protection for such applications are likely to be higher.
We can assist your loved ones if you are faced with decisions of making applications to the Court of Protection.
In general the COP can deal with:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
As we are London based, we can easily attend Court hearings at the COP located in central London on your behalf. For any further enquiries please call us for a no obligation chat.