The Retirement Gym

Legal matters in later life

February 24, 2020 Roy Thompson / Ian Macara Season 1 Episode 2
The Retirement Gym
Legal matters in later life
Show Notes Transcript

In this episode, Roy is joined by Ian Macara who heads the Private Client team at Bennett Griffin Solicitors in Worthing and specialises in contingency planning for life.

They discuss the importance of having a Will and Power of Attorney (POA) and the potential consequences for those who do not have one in place. Ian provides some practical steps to help you make informed choices when planning for later life and why you shouldn't leave things to chance.

Of the adult population, 2/3rds do not have a Will and only 8% have a registered Power of Attorney.

Topics covered in this episode:

  1. What's in your Legal Toolbox?
    • Do you have a Will and a Lasting Power of Attorney?
    • Are they still fit for purpose and have they been reviewed recently?
  2. Why a Power of Attorney should be like a driving licence
    • They should be affordable, flexible and accepted wherever they used.
    • They need a theoretical and practical element so Attorneys understand their responsibilities and appropriate safeguards are put in place.
  3. Why seek out professional guidance when writing a Will?
    • Accreditations and experience: investing in the advice now can save unnecessary cost and stress at a later date.
    • Solicitors for the Elderly (SFE) ensures the quality of the advice and how it is delivered.
    • Society of Trust and Estate Practitioners (STEP): STEP members are recognised as experts in their field, with proven qualifications and experience.
  4. Practical steps to creating a Will:
    • Prepare a family tree – there is not a 'typical family'.
    • Have a clear overview of your assets and income which can impact Inheritance Tax and funding long term care.
  5. Considerations when choosing an Attorney: 
    • STEP have guidelines for Attorneys who may not be aware of their responsibilities.
    • Plan in advance and create a strategy for the next step in your life.
    • Lasting Powers of Attorney: have a plan A and B in place.
  6. What happens when you don't have a POA in place?
    • Nobody has authority over your affairs.
    • Application to the Court of Protection to appoint a Deputy which can be costly and cause delays.
    • The role of the Office of Public Guardian who oversees vulnerable people.
  7. Choice not Chance:
    • It's much better to make informed choices and look at hypothetical situations with less emotion than to react in a crisis.
    • Document your preferences: create a road map for what happens to you in later life.

Ian is a full member of the prestigious STEP (Society of Trust and Estate Practitioners), a full member of SFE (Solicitors for the Elderly) and a Dementia Friend. He is also one of only 71 Panel Deputies approved by the Court of Protection to manage the legal and financial affairs of individuals who have lost capacity and are at risk and who don’t have a Power of Attorney or have previously had unsuitable Attorneys or Deputies.

Roy Thompson:   0:01
So welcome to the Retirement Gym. This is the podcast that aims to help you make good retirement decisions whilst you're saving for retirement and how to spend money when you're actually in retirement. Today I've got with me Ian Macara of Bennett Griffin, Morning Ian.  

Ian Macara:   0:18
Nice to meet you Roy, thanks for having us over.

Roy Thompson:   0:20
That's okay, but Ian is a specialist solicitor, he deals with pre and post-retirement, really, but he's got particular experience with those who are perhaps vulnerable and some of those challenges around vulnerability are often associated with those in later life. I guess, I think probably what I was looking to get from our conversation today was to talk a little bit about, I guess, wills. Powers of attorney, Really, the importance of having those, perhaps the consequence of not having some of those documentations in place and some of the other protections you can put in place and plan for, really, as your approach to later life. So Ian. If we start at the beginning there, we speak with a lot of clients. I speak with a lot of clients about the importance of having a will. A lot of those clients will say yes, it's on my list to do but it rarely ever comes to the top and I think it's because the subject matter is perhaps a little bit macabre. Perhaps you could tell us a little bit about your experiences and the sort of work you do and some of the barriers you face when talking about a will with clients.

Ian Macara:   1:27
Yeah, I'd love to and I'm hoping that the sort of extreme situations we see quite often in trying to resolve problems that have arisen that the listeners can be proactive in trying to take steps to avoid that really so you know, we see some of the most difficult and challenging situations and resolve them, but it's much more satisfying to work with someone. Plan their affairs for the future tie in with the advice they're receiving from their financial advisors their tax accountants and generally people have those emotional barriers, I think, to thinking about death, illness, accidents later life conditions such as dementia, obviously a will essential and we all know we're gonna die.

Ian Macara:   2:11
We might not know we get ill. We drop dead, but there's a place for that Will as a foundational tool really and I talk about the legal tool box. So if the listeners that thinking okay, if I open up my toolbox, what do I have? There is Do I have a will there? Is it rather dusty and maybe a bit broken and out of date? And there's a better piece of equipment nowadays that's available if only I looked and took some advice. Is there a power of attorney there? Preferably are there, two. So again, there might be an old enduring power of attorney lurking there but actually preferable. Normally, to have lasting powers because they can now cover property and financial matters and a separate document for health and welfare. The other bit is that a step further back from that is, how do we get information to people in the right way that resonates and connects and enables them to then take the proactive steps in getting advice. And I'm hoping that podcast today will will provide some of that information.

Roy Thompson:   3:10
Yeah, I agree. You know, it is a bit of a hurdle so I think you were referencing to me earlier today that, you know there's still a remarkably small percentage of people, who have perhaps got some of these, You know what you're referring to as a tool kit. So I don't know if you want to remind us perhaps what those are.

Ian Macara:   3:28
Yes so when you look at wills, still probably 2/3 of the country adult population still don't have a will

Ian Macara:   3:34
And again, there are some key points around that where people are either misinformed or just haven't had the right information to take things forward. Powers of attorney, It still looks like it's about 8% of the country have a registered power of attorney, and that's after Exponential Grace 2008 There are about 85,000 being registered last year it was about 835,000 so they're big numbers, but its a drop in the ocean, really

Roy Thompson:   4:06
compared to the adult population

Ian Macara:   4:07
Exactly. And I think you know, I've been privileged to be attorney. I'm also privileged to be on the quarter protection panel, which is for deputyship. So people who haven't had a power of attorney or not a valid one they can apply or their loved one can apply to be their deputy and have authority from the court to manage someone's affairs. And I'm one of 71 solicitors in England and Wales, where if there isn't someone who can take up that role, the court will allocate that person to myself and my team to then act in their best interests.

Roy Thompson:   4:38
So that's a huge responsibility, being one of only 71 across the nation.

Ian Macara:   4:43
It is.  And it also gives us that practical experience and knowledge and expertise around managing people's affairs. And one of the gaps that I find around powers of attorney is that often the attorneys haven't necessarily had that experience or they haven't had their duties and roles and responsibilities appropriately explained to them. The public guardian use this analogy about having a power of attorney a bit like a driving licence., so every time. If a listener gets their driving licence out to prove their ID, they think "Oh have I got a pair of attorney?" And that would be a nice little prompt to think Yeah, hopefully do that. But Alan Eccles, who was the former public guardian, he said that they want lasting powers of attorney to be as well known as driving licences, so they want them affordable, flexible, and accepted wherever they're used. Now that's a nice concept, but my thinking around that and our experience is that with a driving licence you have two aspects to that. You have your theory test, my son is 18 and just passed that. Well done, Louis. But you also have a practical test with an instructor to see that you can apply that knowledge to real life situations, including dangers and there's very limited, if any, of that work that goes on with attorneys to make sure they can act appropriately, they do have the skill sets. They will comply with their regulations with their responsibilities.

Roy Thompson:   6:08
I guess many people who perhaps have been asked a be  an attorney have no real understanding of what that means.

Ian Macara:   6:14
No. And the power of questions is, if you're asked a question, most people say yes because they want to help. But if they're acting in a crisis, they may not necessarily seek the appropriate advice. They may not know that they're not acting appropriately or if the power of attorney hasn't been set up with appropriate safeguards. Someone potentially is vulnerable to financial abuse, and I see so much of that, unfortunately, where it's then a challenge for us to either recover money or to really bolt the door after the horse bolted.

Roy Thompson:   6:46
Yes and I guess some of the financial implications where people have been abused is huge compared to the time and the cost of actually putting these things into place in the first place

Ian Macara:   7:01
Yes and often because both wills and powers of attorney believe not run regulated. So this drive to get more more people to do them has bean at the expense of some of the safeguards. So again, if someone is looking in their legal tool box and they've got those documents, there is still a question as to are they fit for purpose either at the time they were made because they didn't know what their advisor didn't know, they relied on that or that situation in life has changed and that reviewing them, knowing what is available. So, for example, on old enduring power of attorney, there are significant changes that could be incorporated to a new lasting power of attorney. And the opportunity is there for people to review them and secure those benefits all the time they've got capacity. But if there is that crisis and they lose capacity then that opportunities gone.

Roy Thompson:   7:49
So we talk about a will and a power of attorney and we reference in the Office of Public Guardian. So what if we take them, perhaps in turns, so if I was looking at writing a will, so a lot of clients will say to me, I 'm going to get one from W H Smiths and it costs £19.99.  And people have that sort of mindset. Why seek out the professional guidance that you might find with someone who is a specialist  such as yourself.  What are the benefits? And, I guess from a practical perspective, when people are approaching that, what are some of the things they can do? For example, I would guess speaking to the wider family. As Brits we're perhaps embarrassed or were very private about our finances. Talk us through some of those points.

Ian Macara:   8:42
Thanks Roy, I think  that's good. It is very much like we enjoy working with your team that one of the important things to us when we look to work with professionals are what are their accreditations. what is their experience, so when someone's thinking about their will in a legal context, there's a group of accreditation called Solicitors for the Elderly (S. F. E.)  and that  ensures both the quality of the advice butt also what's important is how that advice is delivered. So it's thinking about the environment and the context. So how can we best pass this information on to the person to receive that information in a way, they can use it? Some people quite visual. So we'll be drawing diagrams and using pie charts and props. For others that face to face meeting is really important to have that trust, you can pick up on the body language of what's not said just as much as what is.

Roy Thompson:   9:33
I think that's really important, actually, you know, I know from a financial advisory perspective, actually meeting someone and sort of understanding you can  have a telephone call and you will pick up on what someone is saying but actually some of those nonverbal cues are really important, especially when you're dealing with. I guess a really sensitive matter which is which is what a will would be,

Ian Macara:   9:58
I think the other aspect or another accreditation is something called Step. That's the  Society of Trusts and Estate Practitioners and the tagline for that organisation is "advising across the generations" so looking at that and  its groups of accountants and lawyers to think often, and it may resonate with some of the listeners, that a child can talk to a parent about their wishes, their preferences, getting the up to date documents in their legal tool box, but that's often an emotional or a relational issue that's tricky. And I forewarn sometimes when we're advising families and generations that I may or my team may come out with advice that's well received just because we're independent and where the specialist but the children, or in some cases the parents telling the child to do something have been mentioning it for years and they've never responded. So, yeah, we're really alive to that relational  aspect, that thinking about death, thinking  about illness, so yeah investing a bit more in the advice now, rather than buying something off the shelf or going to somewhere  not accredited or regulated is going to be important.

Roy Thompson:   11:15
So if I was coming to see you Ian because I want a new will, what sort of practical steps should I take perhaps before I come along. So you know in my mind, speak to the family, yes, but is it worth bringing a family member along? Is there any benefit to that sort of structure?

Ian Macara:   11:35
We'd be really clear on how we advise our individual clients, so that they have the benefit of speaking frankly, but as your team' has experienced often there is this relational generational aspect of making sure that the individuals wishes and preferences are taken into account. So we're quite happy to give information to the family, but when it comes to the specialists advice, that's very much for the individual. But the practical things they can do, just like you had the budget that was a really good download from the last podcast is to prepare a family tree. Now my opening line to a client is there's no such thing as a normal family. We all have this concept that there must be one out there, but there's always a story., there's always a relationship, there's always a history and the better and clearer we can have that information the more bespoke and personalised the advice we can give as to what the options are. And then the individual knows their family, who they trust, what the different skill sets are. They can start working out who they want in different roles. The second point is to have a really clear, simple overview of their assets and their income. And again, that's where your help is invaluable and how assets are held so are they held in their sole name or jointly. Because particularly after retirement, when we're starting to look at maybe inheritance, tax as an issue but also I  don't know if you're finding concerns around funding long term care is a real consideration.

Roy Thompson:   13:07
Yeah, I think that's an increasing issue around that subject, you know, the notion of care, what will it cost, both politically and with clients that I see for sure.

Ian Macara:   13:19
And with the will for example some sensible planning utilising some quite straightforward trusts can create quite a bit of flexibility, particularly with a couple, depending on if one needs care before the other and what we're trying to do is create choices and opportunities for them and their family and again, if that works out a few 100 extra pounds preparing wills now could save tens of thousands of pounds when it comes to care later on, that information needs to be passed over in a way that then the person can make the informed choice? Yes, I'd like to invest that sum now,or for potential return later or actually no, its eyes wide open, that I want the basic standard arrangement, what we need to avoid and try and prevent, and I hear it so often is thanks for the information we'll think about that. And when we need it in the future, we'll come back and sadly I've had a number of times that unforeseen health crisis has tipped someone beyond the line for capacity where they won't be able to then make that choice. Its much better acting and planning when there's no crisis, no time pressures. We're thinking about theoretical situations rather than the actual reality on someone in hospital.

Roy Thompson:   0:00
And that  brings about decision under duress then. So the will you're saying ok a very sensible thing is a family tree, so that wouldn't be something I would specifically think of, an understanding of the assets and having an open conversation with the family. If we start to think about power of attorney that you referenced, what should I be thinking about if I'm thinking about putting a Power of Attorney in place. The natural one might be a brother, sister, mother or father. Are these sensible people to have as attorneys?  And what sort of considerations should I be putting in place? 

:   15:23


Ian Macara:   15:23
Well it goes back to what's a normal family. What's a sensible family member to be an attorney. The individual knows the scenario and the strengths and the potential weaknesses far better than the lawyer but the lawyers role and to provide value is to talk through scenarios from their experience and where attorneys have had to act and things that have gone well or things that have gone disastrously wrong. STEP have a really good leaflet which we can put up afterwards about guidelines for attorneys when they're acting.

Ian Macara:   15:57
Sometimes through ignorance because, as you've said before the attorney has been asked, will you be my attorney? They say, yes, none the wiser. 

Roy Thompson:   16:05
I think most people would just say. 

Ian Macara:   16:09
They're not aware of their duties, their responsibilities, their potential liabilities and then usual scenarios are someone post retirement may want to move nearer to a child in later life. Yeah So is that child going to be happy to live with them. Are they gonna build an extension, or it's the child gonna move nearer to the parent and  move in or they're going to buy the property. There are a number of restrictions that if they're acting, as attorney compared to when someone's fully capacitous  

Ian Macara:   16:44
and can make those arrangements that wouldn't necessarily be evident to them and their common sense thought may be, well, it's common sense to do that.

Roy Thompson:   16:53
I think often it's you know, that thought process may be bound in the fact that they're just trying to help exactly so the common sense decision about I'm trying to help would drive you to behave in a certain way. But I guess what you're saying from a legal standpoint is there needs to be sort of due diligence or a strategy. 

Ian Macara:   17:11
Yes so plan in advance. Like when you're building an extension, you would get the designs you would get planning permission and then you would implement. Very much with the legal side is okay, we're thinking of what are the options for this next step in the person's life? So then what are those steps that need taking when we're going to implement that. On powers of attorney? Probably the number one thing I'd say is there are real benefits to the lasting powers of attorney. So when people look in that toolbox and there's a bit of dust there with an enduring power, often spouses or couples will have appointed each other as their plan A? But they may not have a Plan B. And so I've seen it recently with a client unexpected illness for one of the spouses. Now the spouse who is, well, doesn't have an attorney who can act  because that person's vulnerable and can't make decisions.

Roy Thompson:   17:59
So if something happens to them, really know they're in a troublesome position

Ian Macara:   18:04
That's right and they won't necessarily think to make the power of attorney because they're dealing with a loved one and time slips by and whereas  again with lasting powers you can now incorporate that Plan B with maybe children or other conditions,

Roy Thompson:   18:19
Or I guess, you know again a solicitors such as someone like yourself. And I guess you were referring before we  started recording  to the Office of Public Guardian  standing in that  position, so do you want to tell the listeners a little bit about what would happen if you didn't have a power of attorney in place and you needed to rely upon the office of Public Guardian, and I guess some of the implications of doing that.

Ian Macara:   18:43
So if someone becomes vulnerable and hasn't had a power of attorney in place, then no one has authority over their affairs. so a husband or wife that doesn't provide authority to deal with their spouses affairs and there'd need to be an application to the Court of protection so the Office of Public Guardian oversees vulnerable folk. The court of  protection is the authorising body that would give authority to someone if they couldn't give it themselves, and because someone hasn't chosen someone, then there are quite a few checks and balances and protections with that court of protection but with that comes delay and cost.

Ian Macara:   19:17
So someone would have to step forward and say - this person is vulnerable. I believe I could act in  their best interest, you have to disclose their full financial circumstances, including bank accounts. branch, sort codes,  balances, their will,  members of the family,  pay a large application fee of a few £100 and then put that to the court to decide. The court will then make an order and that deputy of their names, will then have to take out an insurance policy effectively to cover the sums they're gonna be managing in case there was any mismanagement or something went wrong. Potentially that vulnerable person wouldn't be out of pocket.

Roy Thompson:   19:58
So this is quite a significant process you're were talking about both in terms of time and cost. I guess this would come about at a distressing time quite often. So I think what you're saying is my wife and I, if I were to fall ill and there was no power of attorney in place, she would have to approach the Office of Public Guardian and that could be about my welfare, or it could be about my finance.

Ian Macara:   20:24
Generally, it's to do with your finances, so it's another reason why you do a health and welfare power of attorney so the court of  protection will rarely appoint a health and welfare deputy.

Ian Macara:   20:35
it would generally be about property and financial affairs. The health and welfare tends to be on a decision specific basis. Unless the poor health is such that you'd be going back to the court so many times that it's not cost effective and, it's  not time effective. Then they will, in those circumstances, consider a health and welfare. The campaign to raise awareness about powers of attorney when the mental capacity act came in 2007 was saying Choice, not Chance.  Do you want to have choices and make those choices, or do you want to leave it to chance? I add to that really. Do you want the cost now and invest to get the advice or leave it to chance when there could be significantly higher costs. Because either you've had to apply to the court of protection or there's been a big dispute or do you want the control? Or do you want to leave it to chance. Some people like to have planned and also like to make sure their preferences are documented so when an attorney has to act in their best interest, they're following a map, so a bit like sat nav they're saying this is where I want to get to. I've told you what direction I want to  take. I want to stay at home as long as possible. Not go in a care home. I like my breakfast at eight o'clock, not 10 o'clock. Tax planning is really important to me. I have evidenced that during my lifetime and if I became incapable, I still want to maximise the tax efficiency. And the attorneys If they've just said yes, will have no idea necessarily around the steps that need to be taken nor will the donor to actually say I want to document this. I want to give my attorneys the chance to instruct financial advisers in line with that strategy.

Roy Thompson:   22:13
It's an amazing subject, actually when you when you get in to it  because most individuals and those listening will have very personal views about actions that they want to happen again, traditionally in heir later life., but actually throughout their life and  I would be naive to some of the things that you have spoken about today, if we were to carry on speaking, there would be more things that would come out. I think if I kind of summarise the conversation we've had, this isn't a simple buy it off the shelf process. This is a very personal issue. Thinking about your assets, your wealth, your welfare and how that would be treated either if you were to fall ill or you pass away it is worth spending both time and money to have a look at that professionally from someone who is accredited,  in doing that you  create as you have just referenced it in essence, a road map for what happens and the consequence of perhaps not doing that can be a significant cost and actually to me and I see this, where people have perhaps fallen ill or something has happened, it can create a lot of this distress or even worse than that, you know, issues within a family. So  these are the things that people traditionally really want to avoid. So for those listeners at home I guess what we're saying here is that it is important to take the time to think about it, to seek that advice and put something in place that you can rely on in the future.s  

Ian Macara:   23:44
Yes it is much better to make informed choices without a crisis and look at hypothetical situations with less emotion, less tension, and look at the options than to react in a crisis. t

Roy Thompson:   23:57
That's really good Ian. Thank you very much for for all that detail  and for being so prepared.

Ian Macara:   24:02
Its been really enjoyable. 

Roy Thompson:   24:04
So before you go  Ian just three questions. So if you're down the pub and you've got one piece of advice to give to someone who would that be?

Ian Macara:   24:13
As a trained lawyer, you're advised never to give advice in the pub or a party carrying on that theme, give information, but I can't come up with anything as witty as Gill's don't eat the peanuts.

Roy Thompson:   24:24
Does that not depend on how many beers you may have  had and if we're thinking about dying, what with your funeral song be

Ian Macara:   24:34
It would probably be  Celebrate by Kool and the Gang

Roy Thompson:   24:37
Okay, that sounds really good. I think that's quite a positive song. Keeping up, And on the notion of perhaps a little bit more upbeat than what's the best day of the week.

Ian Macara:   24:47
Best day of the week, quite fortuitously, is a Friday and particularly  a Friday evening when you can chill out, a glass of wine, comedy with the  family and you wake up and it's still the weekend.

Roy Thompson:   25:00
That's perfect. I'd  completely agree with you. Friday is the way forward, but Ian thank you very much for coming along and taking time out your day to help the listeners at home just scratch the surface on what's important about wills and power of attorney.   

Roy Thompson:   25:16
Thank you for listening to today's podcast. Hopefully, you found the information interesting and useful. Ian referenced  guidelines for attorneys and important documents and the SFE  certificate that these will be at www.carpenterbox.com/retirementgym. along with other podcasts from our series The next podcast will be hosted in March. We've got some exciting guests upcoming, including an economist, a  psychologist, amongst other things so a  wide range of subjects to talk about. Thank you very much