Do you know that as a result of the fifth amendment to the Anti Money Laundering Directives you may now be required to register the trust for which you have responsibility with H M Revenue & Customs? The technical elements of trust management have never been straightforward but this latest duty placed on trustees adds another level of administration. In previous anti money laundering legislation it was necessary to register a UK trust with H M Revenue & Customs if it fell into one of four categories:- all UK express trusts regardless of whether they have a UK tax liability non UK express trusts with a UK tax liability non UK express trusts which acquire UK land non UK express trusts which have at least one UK resident trustee and enter into a UK business relationship For those of us who like to understand what legal speak really means an express trust is one that is intentionally created by the owner of property to provide specific instructions on how property within the trust should be used. It is usually in writing. An express trust is not one that is inferred from the law. For example an express trust may be a trust set up during someone's lifetime to help pay grandchildren's school fees or to protect assets from care charges. It could be created under the terms of a will. A trust that is inferred by the law is usually known as an implied trust and is one that had not been expressly created by an individual. For the purposes of this article we are not looking at inferred trusts. There are some trusts which are excluded from the requirement to register. These are known as exempt trusts. You are exempt from registration if you are a trustee of a trust which is:- created under the terms of a will and holds property which the deceased owned at death and is only in existence for less than two years a statutory trusts which arise on an intestacy an insurance policy or death benefit trusts a pilot trusts a co-ownership property trusts a charitable trusts a bereaved minor trusts a disabled persons trusts a personal injury trusts a trust imposed by statute or court order However, being classified as an exempt trust is overruled if the trust receives income. Under the new rules trusts are dividend into four categories; type A, B , C and D. It depends on the category of trust your trust falls within as to the action you need to take. It is really important that you take advice as to category in which your trust falls into so that you can deal with the registration formalities. There are going to be sanctions if the trustees do not comply as the obligation is placed on their shoulders to deal with registration. Registration should have been completed by the spring of 2021. However, H M Revenue & Customs have advised that due to difficulties and issues with the Trust Registration Service they are extending the registration time period for newly qualifying trusts to the summer of 2021 rather than in the spring as was originally planned. As a trustee you do need to be careful as there are different timings for registering different trusts and penalties if you fail to act as you should. For more information about the Trust Registration Service and what this means for you give us a call on 01622 843729 for further information

The Court of Protection have recently published a decision in respect of the administration of the Covid vaccination to a 31 year old adult with a learning disability, who could not make the decision for himself. The case was put before the Court as a result of a dispute between the NHS team who wished to vaccinate and his father who objected. The NHS team were all of the opinion that it was in the best interest of the young adult to have the vaccination. The father objected to the vaccination being given to his son for a number of reasons. Whilst he had no objections to the vaccination itself he did not feel it was the right time for his son to have the vaccination. As you can appreciate these cases are always difficult and this is the reason why the Court of Protection is involved. The Court of Protection found that it was in the young adult's interest to have both parts of the vaccination but stipulated that no force (within the terms of the Mental Capacity Act) could be used to administer the vaccination. In making their decision the Court referred to the Mental Capacity Act and the tests set down in Section 4 relating to the best interests. It was not possible to ascertain whether the young adult wanted to have the vaccination, what his opinion was on vaccinations or his wishes in relation to vaccination. His medical, social and psychological needs were considered by experts and the Court. Personal factors were taken into account such as him living in a care home, his age and medical history, the definition of clinically vulnerable as opposed to clinically extremely vulnerable and his ability to comply with social distancing and hygiene measures. The Mental Capacity Act is very clear on the factors which need to be considered when applying the best interest test and these always focus around trying to stand in the shoes of the individual who the decision relates to. Making a best interest decision is not straightforward and considerable evidence was placed before the Court in this case to help them reach a conclusion. It is therefore important to note that the Court will intervene where it is not possible for all parties to agree what is in the best interests of an individual. Many questions are being asked by families with adults with impaired capacity whether it is right for their child to receive the vaccination. If you want to read the discussion of the decision as you think it may be relevant to you click the link below. https://www.bailii.org/ew/cases/EWCOP/2021/19.html

You may remember in the dim distant past the government established a number of Child Trust Funds to encourage saving for our youngsters. Many of the Child Trust Funds are now being closed and encashed but not all have been able to access funds that they are entitled to. For those disabled children who have a Child Trust Fund and have reached their eighteenth birthday they may not be able to access their funds because they lack capacity to do so. If you are one of these families what do you do and how can you access funds? Gordon Brown, the former Labour leader who introduced the scheme, has said that the government needs to bang heads together and act immediately to end the problems and he spoke to Channel 4 news about the situation. To see his report click the link below: - https://www.channel4.com/news/gordon-brown-calls-for-action-to-help-people-with-learning-disabilities-get-financial-support Under the current rules it would be necessary to obtain a property and financial affairs deputyship order from the Court of Protection. Yes the paperwork can be daunting and there are procedures that must be followed but you should not be frightened to make the application. The Court order does not only give you authority to access your child's trust fund but also allows you to deal with all other aspects of their financial affairs. You can collect their benefits, run bank accounts for them, sign housing and tenancy paperwork all safe in the knowledge that the authority sits with you. This is just one of the issues that families with children with learning disabilities have to deal with when their child reaches eighteen. The Court of Protection order can stop many headaches in the future and prevent unnecessary stress. It does not have to be expensive and can be simplified by some legal advice to run you through the process or to help you to complete the application. We recommend all clients who have children with learning disabilities look to put a deputyship order in place for when their child reaches eighteen. We like to be proactive in the advice we give our clients and if we can prevent stress in the future we will do everything we can.

The government have issued a White Paper with their proposals in relation to changing the health and social care system. From reading the proposals the government are keen to integrate social and health care more than it is already. They are looking to remove some of the legal things that create bureaucracy, make greater use of technology and make the system more accountable to the government and tax payers. It sounds good doesn't it! There is too much in this White Paper to begin to talk about in this short space so, if you are interested, in what may happen in the future to the system that will care for you and support you give it a read. Here is the link https://www.gov.uk/government/publications/working-together-to-improve-health-and-social-care-for-all/integration-and-innovation-working-together-to-improve-health-and-social-care-for-all-html-version

On 9 February 2021 the government announced that unpaid carers, who do not live with the people they care for, can now benefit from free PPE through a new national scheme. This scheme has been rolled out nationally following a pilot scheme which worked our how the PPE could be distributed to unpaid carers. Local authorities and local resilience forums have been informed of the scheme and almost two thirds have signed up to support it since they were contacted on 25 January 2021. Unpaid carers are also able to access p riority testing when they have symptoms of Covid through the government testing portal. Some carers have also been prioritised for vaccination as part of cohort 6 including those who are in receipt of a carer's allowance or those who are the main carer of an elderly or disabled person who's care may be at risk if the carer falls ill. For those of you who are not sure what cohort 6 is this is the 6th category of carers who will be vaccinated between the ages of 16 and 64 who have serious underlying health conditions. If you require free PPE then you should contact your local authority and ask whether they have signed up to the scheme or contact your local resilience forum which can be found through an internet search.

This is one of the questions that we are often asked by clients when taking instructions to complete a health and welfare lasting power of attorney. In an ideal world this would be an easy answer! We always advise our clients to lodge a copy of their health and welfare lasting power of attorney with their GP. It would be lovely if there was then a computer system which crossed the whole NHS that allowed hospital teams to view the documents registered on GP notes about a patient. However, this is not the case and there is no magic computer system. So, instead, we tell our clients to keep a copy of the health and welfare lasting power at home so it can be grabbed and taken to hospital if there is an emergency or put in a bag if there is a routine admission. This is in addition to making sure that anyone dealing with health and welfare matters for an individual has a copy of the lasting power of attorney lodged with them. In addition to the GP this could be a dentist, optician, chiropodist, social services and the list goes on! Medical professionals do also have access to the register of the Office of the Public Guardian which lists all who have made a lasting or enduring power of attorney or have a deputy appointed for them. If they make a request for information the OPG will provide this to them within five days. There is a specific procedure which the OPG has put in place to allow the NHS and social services to quickly deal with requests relating to patients with Covid 19. If a Covi19 request is made the medical practitioner should receive a response within 24 hours. The practitioner should receive the following details:- what type of LPA there is when it was registered contact details for the attorneys/deputies how the attorneys/deputies are appointed to act any restrictions or conditions included on the LPA or court order if permission has been given for the attorney to make life sustaining treatment decisions whether the documents are still in force whether there is an expiration date on the court order You may need to provide practitioners with a certified copy. This will need to be certified by someone approved by the Office of the Public Guardian and a charge is usually payable for certification. You can however obtain certified copies directly from the Court or, if you are one of the lucky few to have been provided with a key number for your LPA you can access the OPG portal system online where all information is held electronically. If you need any help in lodging or certifying your LPAs please let us know as we can assist further.

Last week the Court published its judgment in relation to the first covid vaccination / best interests case it has heard. The case involved an 80 year old woman who had been diagnosed with dementia and schizophrenia. She had been assessed by her GP as lacking capacity to make a decision about receiving her covid vaccination. The case came before the Court because her son was deeply sceptical about whether the vaccine had been adequately tested on patients similar to his mother. It was Judge Hayden who presided over the case. He said that "Evaluating capacity on this singe and entirely fact specific issue is unlikely to be a complex or overly sophisticated process when undertaken, for example, by experienced GPs and with the assistance of family members or care staff who know the individual well". As you know from previous articles when someone lacks capacity to make a decision a best interest test has to be undertaken by those involved in the care of the individual that needs medical attention. This involves considering the good and the bad, the risk and the previous thoughts, wishes and feelings of the individual at the centre of the decision making process. It also involves considering the views of those family members considered important in accordance with the Mental Capacity Act. In these circumstances the 80 year old woman had previously consented to flu vaccinations and had advised her GP, when administering vaccinations, she would accept what the GP thought best. Taking her previous actions into account, and the fact she was at a very high risk of infection as she was living in a care home with other covid positive relatives the Judge found it easy to determine that the vaccination was in her best interests. This is despite arguments from the son, which the Judge felt were more about him than the best interests of his mother. Whilst this case demonstrated that the Judge, in these circumstances, felt that vaccination was in the best interest of the lady involved with this case, each case has its own facts and circumstances that provide evidence upon which decisions are made. It may not always be the case that a vaccination is consider in the best interests of someone who lacks capacity. For further information in relation to assessing capacity or questions about best interests please contact the Argo team.

We have written before about the costs of funerals and reviews that are taking place to find out the reason for the increase in costs over the last few years. One way of preventing the cost of your funeral from escalating is to put in place a funeral plan. Research shows that the cost of funerals has gone up by 50% in the last ten years. Many of you might say that you have insurance to cover your funeral but do you really understand what you get from the different types of services on offer. You may often hear about an "over 50s plan". This is a type of insurance policy that you put in place to cover any funeral costs that you may have. On death the plan pays out to a nominated person so that funds are available to clear any costs. However did you know that these plans often result in you paying more in contributions than you would actually need for your funeral? Over 50s plans are based upon a monthly, affordable premium. This premium is however payable from when you take out the plan until when you die. If you take out you plan at 50 and pay £15 a month until you die at 90 you will have paid a whopping £8,640. Unless you are being buried funerals rarely cost this much but if you read the small print carefully you may find that the plan will only pay out for the exact cost of the funeral with the overpayment staying with the insurance company. A funeral plan works in a different way You have a choice of plan that you can purchase from a funeral plan provider. This will range from a basic plan up to a premium plan. You can pick how many cars you want, where you have the service, which funeral director you use, what flowers you have, the songs you sing and anything else that you may want to arrange. You pay a one off fee for the plan of your choice. Once you have paid the premium your plan is then in place for your death. There are some expenses which may not be covered by the plan such as vicar and church fees or internment fees. I know from when my nan died that, despite how close we were, I really had no idea what she wanted for her funeral. It was only a couple of months later that we discovered in the back of an old note book a list of songs that she had written she would have liked to have been played. For me arranging the funeral was one of the hardest things I did. I wanted to give her the best send off I could and make sure everything was perfect. I really struggled in the funeral directors with making the simplest of decisions because I was grieving for the loss I felt. For me a funeral plan would have helped with the final job that needed to be done so I was sure that my nan had exactly what she wanted. If you are thinking about making a funeral plan or care for someone that ought to put one in place give us a call as our team can help with this.

Just in case you have a family member in Medway we thought we ought to let you know about the new belonging drop of services they are offering at the hospital. You are now able to drop off one bag of personal items at the reception at the front entrance to the hospital. The items should be placed in the bag which must be wiped down before delivery. Due to infection control risk only essential items such as clothes, glasses, small bathroom essential and one small comforting personal items such as a photo or a book. You can deliver these items to the drop off service at reception during the following times:- Monday to Thursday 9am to 12pm and 4pm to 7pm Friday 12pm and 3pm and 5pm to 8pm Saturday 10am to 2pm

Discussions are afoot within government to reform the Mental Health Act which has been in place since 1983. These reforms are somewhat overdue in light of how we now approach issues with mental health. The final report into the reform review was published in December 2020 and made many recommendations for change. The government's response to the report has now been issued in a White paper, a discussion document, which is being followed by a 12 week public consultation. If you have any views or thoughts on changes to the Mental Health Act you should read the consultation and comment. A revised mental health bill will then be drafted and introduced to Parliament for discussion when time allows. It looks as if the changes are going to include four principles in the new legislation, so working similarly to the Mental Capacity Act 2005. This is in addition to the five principles in the code of practice. It is proposed to introduce the following:- choice and autonomy - to ensure patients' views and choices are respected least restriction - enduring Mental Health Act powers are used in the least restrictive way therapeutic benefit - ensuring patients are supported to get better and discharged as quickly as possible the person as an individual - ensuring patients are viewed and treated as individuals There are also plans to tighten the criteria for detention under the Mental Health Act to address the rising rates of detention. There are plans to amend the section three detention criteria and the section two detention criteria. It is intended that Mental Health Tribunals will now check on whether a patient's detention continues to be appropriate with changes coming in to alter the appeals process. A new element to the legislation is to be introduced called Advance Choice Documents which are to be made by individuals who live with mental health issues at a time when they have capacity for when they do not. These are to document their preferences about future treatment. There will be a requirement for treating clinicians to consider the Advance Choice Documents whilst the individual is being detailed. Along with these documents there will be a requirement for all detained patients to have a care and treatment place with clear expectations about how this should be developed with the individual being detained. It is proposed that there will be come amendments to introduce additional safeguards which will require the authorisation of the court before being administered if consent has not been provided by the individual, for example the use of urgent electroconvulsive therapy. The nearest relative role is due to be replaced with a new statutory role called the nominated person who can be chosen by the patient to represent them and the role of independent mental health advocates is to be expanded into providing more support through the mental health treatment process. This is clearly a positive step in the right direction to bring the Mental Health Act up to date and make it fit for purposes. The next step is to see what happens after the consultation period and what is included in the Bill. Watch this space for further updates.

A recent research report into wills and probate activity has come up with some interesting findings in relation to the world in which Argo works. We all know that making a will is not up there on the priority list and it is one of those things that we will get round to doing. Particularly for the younger readers this is further down the list than most things as it only begins to become important as we get older. Research has shown that it is commonly the over 55s who make wills. Dealing with the administration of an estate is also usual for people in this category, although this is hardly surprising with ageing parents. What is pleasing to note is that law firms still tend to be the first port of call for people who need to make a will or deal with estate administration. This is good as we see far too many problem documents, missing documents and disasters as a result of not receiving good advice from appropriately qualified advisers. It is disappointing to see from research however that there is still confusion over who is regulated or unregulated within this area and what this means for clients. We are a regulated firm. This means that we have rules we have to follow. We are insured and if we do something wrong our insurance is there to provide redress for our clients. There is also provision for what happens if our firm ceases trading. This is not the case with unregulated providers. It is unusual for them to have insurance cover like or to the levels that regulated firms have to have and there is hardly every provision for what happens if the firm ceases trading. Covid has had an impact this year on people making wills and dealing with estate administration. It is surprising to see that only 4% of those making a will were persuaded to do so by the virus. This however is borne out by what we have seen within the office. During 2020 priorities have been elsewhere. If making a will was on the list to do it got done otherwise the virus made little effect. Clients have become used to online and video calls and seem to think this will continue as part of future advice and it also seems that people are getting their heads around the online probate application process. We hope and have all fingers crossed that the online process will improve as you have seen from previous articles the problems there currently are with it! It seems that the most important things for people considering making a will are:- cost of will quality of service experience of adviser friendliness and helpfulness of staff ease of preparing the will Whilst we know that the cost of making a will it upmost in a customer's mind as it is one way of comparing like to like we find that the quality of service and friendliness and helpfulness of staff is what brings customers to us, rather than costs. One thing the report did highlight was the human emotion and connection when making a will. This is really important to customers when they talk to people about making a will. This is particularly so at the moment as the lawyer may be the only person to have made contact in recent months. Whilst we understand costs are a factor we believe that you get what you pay for. Here at Argo we will not just make your will or administer an estate. We will look after you. We will support you and make sure that you and your family are okay and have the tools to move forward and deal with whatever comes your way. We often provide advice outside making a will or administering an estate which is valuable in many ways. We believe that forging an excellent working relationship with your adviser is priceless and that the benefits of this far outweigh the costs of that particular job. With this in mind why not choose someone you can build a relationship with who will be there to help you in the future with whatever comes your way.

Lots changed over the weekend for those of us now living under tier 4 covid restrictions. This means that many things are now very different to Friday. We have taken a look at how these new restrictions will affect our elderly and vulnerable communities. As from the early hours of Sunday morning we are unable to leave or be outside of the place we live unless we have a reasonable excuse. A reasonable excuse is leaving home for work purposes when your place of work remains open and you cannot work from home. You must shop local in the essential shops that remain open. These shops are pharmacists, supermarkets and food shops, click and collect food purchases and banks. You can also access critical public services. You are allowed to fulfil legal duties ie buying and selling a house and you can leave home for educational related purposes ie school and registered childcare. We cannot meet people indoors unless we live in the same house as them or they form part of our support bubble, even then we are only allowed to meet one person from a different household. Outdoor exercise is still permitted with certain rules and some outside spaces are open. Medical reasons are reasonable excuses. You can travel to have a covid test and for routine appointments. You can travel for emergencies and to be with someone who is giving birth. You can also leave home to visit someone who is dying, in a care home, hospice or hospital within the rules of the establishment concerned. The government have not forgotten pets. You can still take your pet to the vet. You can still worship, attend a funeral, visit a place of remembrance or attend a wedding, within the prescribed rules. For those who are considered to be clinically vulnerable ie over 70 under 70 and instructed to get a flu jab pregnant living with a respiratory disease living with heart, kidney, liver or neurological conditions spleen issues diabetes a weakened immune system or a BMI over 40 the government have advised that you should be especially careful to follow the new tier 4 rules and minimise contact with others. For those who are considered to be clinically extremely vulnerable ie organ transplant recipients cancer patients and those receiving chemotherapy people living with blood cancer people with lung cancer people with severe respiratory conditions those with rare diseases adults with Down's Syndrome people on dialysis those who have received a letter from the NHS or your local GP confirming you are clinically extremely vulnerable the above rules on social interaction should be closely followed. If you fall within the clinically extremely vulnerable category you should not attend work. You can apply to the Access to Work scheme to provide support and assistance to work at home. A child should also not attend school if they live in the tier 4 areas. If you need assistance with shopping or going to the pharmacy you can call on the assistance of NHS Volunteer Responders on 0808 196 3646 to receive support. Originally these rules were going to be relaxed for five days over the Christmas period but this is now not the case. You are only able to mix with one person from another household and if you are clinically extremely vulnerable the recommendation is to not form a Christmas bubble, just mix with those you live with. If you do decide to form a Christmas bubble then you must ensure you avoid physical contact, maintain social distance, keep rooms well ventilated and make sure that hygiene measures are increased in communal spaces. This Christmas is going to be difficult for many families as a result of these Tier 4 changes but to sacrifice seeing those near and dear to us this year in favour of many more to come is a no brainer, surely! Just remember that you can make someone's day not just by being with them but by phone calls, videocalls, face time, Whatsapp calls. Be inventive for this year. Some of us in the office are going to put gran at her place on the table on an IPad and compare who made the best dinner! However Tier four affects you make sure you stay safe and well.