This is the fifth principle in the Mental Capacity Act, and the most complicated to understand. The legislation states that "before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action". Perfectly clear! Or not! When decisions need to be made for someone who is unable to decide for themselves the question of interfering with their rights and freedoms must be considered. If the decision has to be made to place someone in a care home this, ultimately, will impact upon their freedom to come and go as they please. A decision to use a general anaesthetic instead of a local anaesthetic impacts upon freedoms and rights. Part of the decision making process will also need to consider whether it is actually necessary to act or make a decision at all. Sometimes it is better to opt to do nothing! When following the fifth principle it is necessary to look at all options and not just one. If it has been identified that Mr S cannot maintain his personal care and welfare needs and is not coping at home what would be the least restrictive option? Does Mr S need to go into a nursing home or a residential home? Could he have a 24 hour live in carer? Could he be well looked after with a domiciliary care team or does he need any support at all? By looking at each of these options, considering their relevance to the situation in hand and evaluating which is best, you are looking at whether anything can be done to prevent the restriction of rights and freedoms. It may be that the only option that is suitable for the circumstance is nursing care but the position has been considered and thoroughly reviewed. What the decision cannot do is prevent the original purpose of the decision or act from being achieved. When considering the least restrictive option you cannot forget to look at what is in the best interests of the person who lacks capacity. There are occasions such as the example above where the least restrictive option is not the most suitable. The least restrictive option here would have been to either leave Mr S with no support or to provide domiciliary support to help him around the home. Neither met the best interest threshold however, to keep him safe and secure. If you are an attorney or a deputy, or a carer or a family member it is important you understand how all principles of the Mental Capacity Act affect you in your role and the decisions you make. If you would like further advice please do not hesitate to contact us.

Historically, solicitors have been appointed to act as professional executors of estates. Whether this has been because it was the done thing or because people thought estate administration was too difficult, who knows. It is not so much the case these days as people now feel their families are more able to manage the administration of an estate themselves. There are however some wills where a professional appointment still exists and family members may not want the professional to act. There are circumstances in which a solicitor acting as an executor is a good idea namely if the estate is complicated or there are families in conflict or there may be a challenge to the estate from a disappointed beneficiary. Sometimes solicitors have refused to step down and renounce their appointment as executor and tr ustee when asked, leaving difficult relationships between them and family members during the administration period. When taking instructions about the appointment of an executor a professional should ensure that they have discussed the reasons for their appointment with the person making the will so that any request to step down can be discussed and the reasons for the appointment made clear. If a professional executor is asked to step down they do need to consider and demonstrate that they have taken steps to show whether or not it is appropriate for them to act. If you are appointed to act as an executor with a professional or are a beneficiary of a will with professional executors you should not feel afraid to ask the question about stepping down. It could save the family a lot of money but remember, professional executors do you have a role to play and you should also give careful thought as to whether that professional expertise could benefit in the long run. If you have any questions about the appointment of executors please give us a call on 01622 843729.

Funerals were not the same during covid and many families did not get to say goodbye to their loved ones in the way that they wished to. Waiting times for burials and cremation increased, families could not always attend services and things were very different. Now we are trying to adjust to life with covid, life and death will continue and we will be able to say goodbye as we wish. For some families, whose loved ones were organised, funeral plans were purchased in advance of death to make life easier when it came to make arrangements. Many of those who died from covid would have had funeral plans but were unable to have the funeral they arranged. If a cremation or burial had to take place without family attending and without the ability of choice of venue or timings the costs they paid for the funeral plan would have been in excess of the actual costs of the simpler service that they had to have. It probably did not even occur to these families to see whether they could obtain a refund for the cost of a funeral which had been paid for to include cars to transport family members, a service of remembrance, flowers and other specific requests rather than what was had. If your loved one did pay for a funeral which they could not have, as a result of the measures imposed under covid restrictions, it may be possible for you to obtain a refund on the difference in price between the funeral plan purchased and the cost of the funeral held. It is unlikely to be a refund on the whole cost but could be a refund on certain elements. A funeral plan is a legal contract. The person purchasing the plan made a payment of money in exchange for a promise of a particular service. If that service did not happen or was only fulfilled in part there is a reason to claim a refund. If you are not sure of who provided a funeral plan or whether there was one in place you can contact the Funeral Planning Authority to see whether your loved one had a prepaid plan. They will confirm the name of the provider so you can trace the funeral director to begin the conversation. For further details of the Funeral Planning Authority you can look at their website https://funeralplanningauthority.co.uk/trace-a-plan/ or you can telephone them on 0345 601 9619. If you need any help from us with this just give us a call on 01622 843729.

Once of the principles of the Mental Capacity Act is that an attorney must only act in the best interests of the person they are looking after, but what does this actually mean? As is always the case with legal things there is never a straight answer. In these circumstances the complication is that what is best for one person may not be in the best interest of another. It is also not helped by the Act not actually providing a definition! When you are looking at what is in the best interests of someone you need to consider lots of things. So, start with the question that you need to answer. Is it in the best interests for the individual to pay their gas bill? Is it in the best interest of the individual to have an operation on their eye? Is it in the best interest of the individual to ....... If you are the individual tasked with making a best interest decision for someone who lacks capacity you must take into account all the relevant factors that it would be reasonable to consider not just those you think are important. What is relevant will vary from situation to situation. You cannot work out what is in that person's best interest based on their age, appearance, condition or behaviour. You must make every effort to encourage the person who cannot make the decision to join in and express their thoughts and wishes. You need to consider whether the decision can be delayed if the individual may regain capacity. You must take into account the past and present wishes and feelings, beliefs and values of the individual who lack capacity and you must make sure that the views of others close to the individual lacking capacity are considered. You should not take shortcuts in working out what is in someone's best interests and a proper and objective assessment must be carried out for every decision you need to make. The best way to make a best interest decision is to operate a balance sheet with the pro's and con's of the decision that needs to be made. Go through the things that you think are positive and negative about the situation and conside r each in turn. Use this balance sheet as a starter to discuss with friends and family and to help determine what is a relevant factor. Finally, keep a note of the decision you make. It is not a problem for you to keep a file of all the best interests decisions you have to make. You may need to justify a decision you make in the future if it is questioned. The note you made at the time you made the best interest decision could be vital! If you are worried about making a best interests decision on behalf of another please give us a call to set your mind at rest on what to do.

Dear Servicemen & women of the UK armed forces Argo Life & Legacy are proud to have signed the Armed Forces Covenant. It is a commitment that ensures those who serve, their families and veterans will be treated fairly for all matters. Our pledge means we'll provide advice and guidance to help them in an environment where they can live with dignity and receive the respect they deserve. The Armed Forces Covenant is a promise made by the British Government to those who serve in our armed forces or their dependents. It is an agreement between the nation, those who serve and sacrifice on behalf of us all and those who are no longer able to protect themselves. The covenant recognises that members of our armed forces make/made sacrifices which may affect them or their families through periods of service, transition into civilian life and beyond; these include military operations overseas, working with allies around the world, training other nations’ militaries for peacekeeping missions at home or abroad as well as being deployed domestically to support civil authorities during emergencies such as flooding and terrorism incidents. We're excited to enter into this covenant because it aligns with our core values of community involvement. We are proud to provide legal advice to service members and their families who've made sacrifices on behalf of our country. Thank you for your service in protecting us, We are here to help protect you. Kind regards Argo Life & Legacy #forourforces

Under a new review and consultation the Department of Health is looking to raise the free prescription age to match state pension age, rather than 60. This could mean that you will not be able to claim free prescriptions until you are 66. It is thought this could impact approximately 2.4 million currently eligible people. The question being asked is "Do you think that aligning the upper age exemption with state pension age could have a differential impact on particular groups of people of communities?" If you feel you need to reply to the consultation you have until 2 September to do so and can use the following link https://consultations.dhsc.gov.uk/60f1d71d92acba45b64b5bfb You can claim a free prescriptions if you fall into the following categories:- people aged 60 or over people aged 16 or under people aged 16 to 18 who are in full time education pregnant women or those who have given birth within the last twelve months people with a medical condition and a valid medical exemption certificate those with a physical disability and a valid medical exemption which prevents them from going out those with a valid war pension exemption certificate NHS inpatients The NHS could stand to raise an additional £300million from this change by the year 2027. The National Pensioners Convention have said that raising the free prescription age would have a "massive negative effect" on health and that the prescription charges are not affordable by those on a low income. They have launched a "Save free prescriptions" campaign to convince the government of the need for free prescription for over 60s. If you want to read more about the proposals click below for the details:- https://www.gov.uk/government/consultations/aligning-the-upper-age-for-nhs-prescription-charge-exemptions-with-the-state-pension-age/aligning-the-upper-age-for-nhs-prescription-charge-exemptions-with-the-state-pension-age If you need any advice or support in relation to claiming free prescriptions please contact us on 01622 843729 and our health and welfare team will be pleased to assist.

Changes are afoot to the Care Act 2014 to alter the process of assessing the help and support a patient will need before discharge from hospital. Schedule 3 of the Care Act sets out the provisions for planning hospital discharge from hospital to local authority care. At the moment the legislation requires local authorities to carry out social care needs assessments before discharge from hospital. Often the need to carry out these assessments before discharge resulted in delays returning home, decline in independence, muscle deterioration and additional expense to the NHS. The Health and Care Bill plans to alter this. It plans to adopt the "discharge to assess model" which enables recovery at home, a reduction of time in hospital and maintenance of independence. Care and reablement will be provided in the community to achieve this. Assessments will take place to review long term health and care needs at a point of optimum recovery. The Bill is due to repeal Schedule 3 of the Care Act that states that the local authorities must assess for social care needs whilst a person remains a hospital inpatient. It will not change the legal obligations on the NHS to meet primary care needs and the local authority to meet social care needs and it does not change the criteria to obtain support. If you are interested in what this could mean for you or a family member or are just curious about what the change, why not have a look at the discharge to assess information booklet issued by the NHS. The link can be found below https://www.nhs.uk/NHSEngland/keogh-review/Documents/quick-guides/Quick-Guide-discharge-to-access.pdf

If I make a will something will happen to me. My estate will pass to my common law wife. My husband will receive everything when I die. I don't have enough assets to need a will. These are all reasons people give to Argo for not making a will. We can reassure you that we have never had a client leave our office after making a will for them to be hit by a bus. There is no such thing as a common law wife. Your spouse may not receive everything when you die. You do not need to have lots of assets to make a will. A recent IRN Wills and Probate Research report has identified that fewer than 4 in 10 adults have made a will. The report has surprised industry experts as they were expecting this figure to increase significantly in light of covid but their figures show there has only been a 1% increase in will making between 2019 and 2020. This is of no surprise to Argo as many people we speak to do not have a will until they talk to us. We did not see a huge influx in will making during the pandemic because when we spoke to people they were more concerned about keeping their jobs, homes and children fed. Statistics have always shown that the older we get the more likely we are to make a will. Youngsters are invincible. You are too busy in your 30s and 40s and don't have the spare cash as you need all the funds you can get for the kids. In your 50s you are busy trying to pay off your mortgage and supporting the kids at university, not to mention the grandchildren who might start to appear. It is usually in our 60s, when we start to think about retirement, that our minds turn to wills, but it is not age that underpins the need for a will, it is what you own. If you own a car, a house, whether or not it has a mortgage, have some savings, have jewellery, have children these are the things that should govern making a will not how old you are. Dying without a will causes huge problems for families. The intestacy rules govern who can administer an estate and who will inherit. These rules can mean that distant family members you have never met could inherit your estate. Ownership of houses can be made very complex if they are co-owned. Issues with estranged family members can arise and the absence of a will could lead to an unwanted gift being made. Writing a will gives you peace of mind and certainty about what is to happen with your assets on death. It ensures that those most important to you are protected. If ensures that distant family members do not inherit and those you have fallen out with do not benefit by default. A will also allows you to document your wishes in relation to the future care of your children. Will writing is nothing to be scared of. It's just a conversation and an exchange of ideas. So, let's get on and get it sorted. We have lots of appointments for you if you would like to make your will. All it needs is for you to pick up the phone and give us a call on 01622 843729.

I don't know about you but this can be hard work and complicated. Not because it is just because the organisations dealing with ISAs seem to have less of an idea about what to do with them than we do! I thought I would try and simplify the issue. Since April 2015 it has been possible to transfer the ISA from a deceased's estate into the name of the surviving spouse. If spouses were not living together at the time of death, are separated or the marriage has broken down this will not apply. This ensures that the annual ISA allowance is not lost nor is the tax free wrapper. Before April 2015 it had not been possible to do this. The process of the transfer is now known as the Additional Permitted Subscription Allowance, APS for short. Any funds transferred under an APS are added to the ISA allowance for the surviving spouse. Until 5 April 2018 the amount that could be transferred were limited to the value in the deceased's ISA at the date of their death. If the deceased died after 5 April 2019 the transfer value will be the amount at the date of death together with the increase in value to the date upon which the ISA stopped being an account of the deceased. When you inherit an ASP ISA you are able to continue to add funds into it as you would do a regular ISA but you can only transfer up to £4,000 in one tax year not as much as you would do into an ISA of your own. You are still able to transfer into cash ISAs, stocks and shares ISAs or innovative finance ISAs so the options are no different to if you were looking for yourself. There is a process which has to be followed to deal with the transfer and this is where it can get complicated. You have to notify the ISA provider that the holder has died and that you want to claim the ISA under the APS scheme and you will need to let the provider know your personal details, prove your marriage and you will need to declare that you are the surviving spouse and were living with the deceased that their death. You must watch the time limits for applying for the APS transfer though. If you are transferring like for like then this must be done within 180 days of the beneficial ownership passing to the surviving spouse. If you are dealing with cash ISAs this must be done within three years. If you over the three year period then the application must be made within 180 days of the completion of the estate administration. These transfers are not easy and are complex. If you are thinking about transferring the ISA of your spouse who has recently died please take advice and make sure it is done properly.

Of course you can if you pay for them! You can make as many gifts as you like. If however you are acting as an attorney the answer to this question is as long as you act within your powers. When looking as gifting as an attorney we are considering things like charitable donations, interest free loans, putting properties in trust, rent free living, paying for school fees or large payments of money. If the donor (the person who has made the lasting power of attorney under which you act) is capacity of deciding whether to make a gift you do not need to be involved. If, however, there is an issue with the donor's capacity you will need to consult the donor to see whether they have capacity to make the gift. Under the rules an attorney can:- make a customary gift ie weddings, anniversaries, birthdays, graduations, Christmas, Eid, Hannukkah make donations to charity These gifts must be reasonable in relation to the size of the donor's estate and must not impact upon their ability to pay for care for the remainder of their lifetime. It is considered no more than £250 for these gifts is a reasonable amount. If, as attorney you want to make a gift which is larger than this you will need to make an application to the Court of Protection for authorisation to proceed. This does not mean that the Court will refuse. It will look on the evidence presented and decide if it is in the best interests of the donor. You should also look to make an application to the Court of Protection if you are looking at making a gift to yourself because you have a conflict on interest as attorney. If you think you have made a gift which is outside your powers you should notify the Court of Protection as soon as possible. The Court will investigate what you have done. You may be asked to refund the gifts to the donor or provide you with retrospective approval for what you have done. In the most serious of cases you could be removed as an attorney. Many people take on the role of attorney without fully understand the implications and responsibilities they take on. Rather than get in a muddle or trouble with your actions why not see advice about what you can and cannot do. That's what we are here to hep with!

Have you ever wondered about what some of those legal terms actually mean? The term personal chattel is widely used in will drafting but I bet you don't know what it is! The term is defined at s55(1)x of the Administration of Estates Act 1925. Back then the definition consisted of carriages, horses, plated articles, linen, musical or scientific instruments, apparatus, wines, liquors and consumable stores - whatever that is!! I don't believe that many of us now have horses and carriages but we do have cars, motorbikes, bedding, kids toys, computers and IT kit instead. Personal chattels are your possessions. They are the contents of your home, furniture, paintings, photographs and jewellery. To help with interpretation this original 1925 definition was updated in the Inheritance and Trustees Powers Act of 2014 to be tangible, moveable property but not money or securities for money, property used by the deceased at his death solely or mainly for business purposes and property held by the deceased at death for investment purposes. That's much better isn't it! You can give your personal items away as you wish, to whomever you choose. You can put a big long list of items in your will that you want to give to specific people. But what happens if you fall out or break the item give? It is much easier to put a clause in your will that leaves all you personal things to your executors to distribute as you instruct them in writing or verbally. This is a much better method of dealing with your personal items and gives you flexibility to change your mind or remove things if you have disposed of the item. The drafting of wills is never straightforward and you should always take expert advice about what you do. You really do not want to fall foul of a drafting error which could cause significant problems in the future. After all, if you live in a park home, mobile home or static caravan do you know if it is considered to be a personal chattel or a property?? Give us a call if you need to prepare your will and let us help you do it properly.

If you catch us on a bad day you may get the reply of how long is a piece of string! Whilst that is neither helpful nor professional there are days where it feels as if that is the only answer we can give! The Office of the Public Guardian has recently updated its guidance in relation to the length of the registration process. Whilst us lawyers can do our bit quickly the Court is a different matter. We have historically advised it could take between twelve and sixteen weeks for the registration to be completed. The Office of the Public Guardian have advised we should advise our clients that this is now twenty weeks from submission. This seems like rather a long time. We have always been proactive however in relation to the registration gap. There are measures that can be put in place to provide assistance to those who may need it during this intervening period so don't despair. If you do need any help because an emergency has arisen during the registration period or things are becoming difficult give us a call to help.