Advance decision to refuse life-sustaining treatment (“living will”) made by eye movements is upheld
by Rebecca Haywood, May 18th, 2012
The case of Re: XB (Court of Protection) has come before Theis J, sitting as a Court of Protection judge, as an application from an NHS Trust who challenged the validity of an advance decision to refuse life-sustaining treatment (sometimes referred to as a living will) made by a patient using eye movements.
The advance decision was made in November 2011 by a man aged 67 suffering from motor neurone disease and included a refusal of life-sustaining treatment, such as artificial breathing support and artificial nutrition (food and water by tube). MND is a progressive neurological disorder that causes the muscles to waste away, affecting movement, speech, swallowing and breathing, and is generally fatal within two to five years although Professor Steven Hawking is a noted exception. Actors David Niven and Cyril Cusack, and Group Captain Leonard Cheshire were also sufferers.
The patient had discussed making this decision with his wife many times in 2010 and 2011 and she had found a precedent on the internet. The patient then used eye movements to communicate his consent to the contents of the advance decision with family members, a carer, a social worker and a medical practitioner present. The patient subsequently lost all ability to communicate.
One of the patient’s other carers (who was employed by the NHS Trust in this case) challenged whether he had actually been able to communicate agreement to the contents of the advance decision at the time it was made. It was established that the carer questioning the position was not actually present when the advance decision was signed. Under the Mental Capacity Act 2005, Living Wills should be in writing. However, the documents are still recognised if the individual concerned indicates their decision in front of witnesses, and allows somebody to sign on their behalf, also in front of witnesses.
Mrs Justice Theis held that she was satisfied that the decision represented the patient’s wishes. In making her decision she stressed the importance of clarity when drafting an advance decision and the need for health authorities involved to investigate advance decisions urgently should they have any doubts about their validity. She also suggested that organisations offering template advance decisions should review them in the light of this case. The judge said that the patient’s life could now “peacefully end” and added “I hope the next stage proceeds as well as can be expected.”
The man’s wife told the court that he “wanted to be allowed peacefully to end his life.”
The lawyer representing the family said after the hearing that the case showed the importance of preparing advance decision documents carefully. He added: ‘XB was a proud and intelligent man living in the south of England suffering from the terminal illness motor neurone disease. He has fought a long battle against the disease and has now reached a stage where he can no longer communicate his needs. His family are pleased that the court were able to clarify that his wishes were made and set out in a valid advance directive. They would appreciate that their privacy is respected at a time of obvious grief.”
Living wills, or advance decisions, allow people with or without a serious illness to set down at what point they want their treatment to cease so they can die. They were given legal force by the Mental Capacity Act 2005. This landmark case is the first Court of Protection case on the validity of an advance decision to refuse life sustaining treatment since the Mental Capacity Act came into force in October 2007.
If you would like to speak to a member of the Probate, Wills and Trusts Team about advance decisions, Wills or Powers of Attorney, please do get in touch.
The risks of homemade Wills and DIY probate
by Rebecca Haywood, May 13th, 2012
A recent press release from tracing specialists Title Research confirms that in 2011, over 15,500* Wills failed to appoint an executor or the executor was unable or unwilling to administer the estate, which is a 5% increase on 2010. This means that someone else has to be appointed to the role – and the appointment must be in accordance with the law, not just someone who offers to step in!
Kevin Cole, Head of Research at Title Research said: “These figures highlight the need for regulation of Will writing. Thousands of people every year end up with poorly drafted Wills which do not even name an executor or do not make sufficient provision in their Will for a substitute executor if their executor dies or is unwilling to act. It is vitally important for the public to seek professional advice from a reputable well trained practitioner in Will writing to avoid these problems arising.”
The Legal Services Board announced plans on 23 April to press ahead with regulation of Will writing and estate administration.
The 2011 grant of probate statistics also reveal 86,470 grants were issued to private individuals. Mr Cole said: “The LSB’s plans to regulate estate administration will not affect the thousands of people who don’t use a probate service provider to administer an estate. The risks of mistakes will remain with complex DIY probate such as undervaluing the estate, underpaying tax or missing out entitled heirs.”
Some private individuals to whom grants are issued may require legal advice on the probate process at a later stage, when people realise that being an executor can be a complicated and time-consuming process.
The 2011 figures show that there were 148 more grants issued on solicitor applications compared to 2010, so people are realising that it is a sensible precaution to have professional assistance in regard to estate administration.
The 2011 Probate Service figures also reveal 19% of probates dealt with by the Probate Service involved estates where the deceased did not leave a Will at all. This is a 4% decrease in intestacies recorded by the Probate Registry compared to 2010 and so it seems that the message as to having an up to date and valid Will may be getting through.
If you need advice or assistance concerning drawing up or revising your Will, or dealing with administration of an estate, we are always happy to help.
Rebecca Haywood
• *15,553 grants of letters of administration with Will annexed were issued by Probate Registries across England & Wales in 2011. These grants are issued where the deceased made a Will but failed to appoint an executor or the executors named in the Will have died or are unable or unwilling to act
• Data included in this release only includes data from Probate Registries in England & Wales
Getting Wed? Get a Will!
by Rebecca Haywood, April 30th, 2012
I helped to man (woman? person?) the Mayo Wynne Baxter stall at a Wedding Fair held at the Amex Community Stadium in Falmer on Sunday 29 April, with colleagues from the Probate, Trusts & Wills and Family Departments.
It was surprising how many people stopped to look at our banners and asked whether we were there to offer divorce advice – how pessimistic!
Obviously, we do assist clients in divorce proceedings and mediation, but the real purpose of our presence at a fair promoting all sorts of services in relation to planning a wedding was to remind people of the legal matters that need to be considered when you get married or form a civil partnership (and all references to “marriage” hereafter include forming a civil partnership).
For example, did you know that if you already have a Will, it is very likely to be revoked by your marriage, unless it was specifically written to take that into account? If your Will is so revoked, that would then mean that if some dreadful accident befell you on your honeymoon you would die intestate and your surviving spouse or civil partner does not necessarily inherit your entire estate when the laws of intestacy come into effect. Alternatively, you may not actually want them to take everything, especially if it is your second marriage, in which case – without a valid and up to date Will – you will have no say as to who gets what, and who administers your estate.
You should therefore ensure that you both either make arrangements to update your Wills before your wedding and ensure that the lawyer advising you is aware of the forthcoming event so it is taken into account, or see a lawyer as soon as possible after the ceremony.
We also prepare pre-nuptial agreements for couples intending to marry (and post-nuptial agreements for those already married) who want to make sure that should things not work out, they have already agreed what assets belong to whom and how things are to be divided or retained. Case law suggests that pre-nups should be completed a certain period before the actual marriage takes place and so you should start the ball rolling with your legal adviser well in advance.
Marriage may also lead to joint property purchases and our Property Department are always happy to advise on the best way forward. This may also affect the devolution of your estate which could lead to further changes to your Wills.
I know these matters are nowhere near as exciting as cakes, dresses and flowers, but they are just as important and should be given a place high up your “to-do” list when planning the big day.
Five Reasons to Change Your Will…
by Rebecca Haywood, April 10th, 2012
I know I seem to be perpetually nagging people about their Wills, but there is absolutely no reason why every single adult in the country shouldn’t have an effective and up to date document.
Here are five good reasons why you should come and see me or one of my colleagues in Mayo Wynne Baxter’s Probate, Trust and Wills team to update your Will arrangements.
1. You don’t have a Will. Technically, I know this means there is nothing to update , but having one would be a change! If you die without a Will, or without a valid Will, the intestacy rules will come into play – in effect, the government has written your Will for you…
2. Your marital status has altered. Getting married or forming a civil partnership will automatically revoke any Will you already have unless it has been specifically written with that in mind, so it could be that you think you have a valid Will but in fact, you don’t! On the other hand, if you are getting divorced and you die before the Decree Absolute is issued, the law will pass some, if not all of your estate to your spouse. Writing a Will in anticipation of the divorce or separation may assist.
3. You’ve had a child / grandchild / some other new arrival and you would like them to benefit from your estate. If they are not mentioned in your Will, they may not inherit – another good reason to speak to an expert. If you’ve had a child, a Will is also the best place to appoint legal guardians to look after them should something happen to both parents before the child is 18, and avoid Social Services or the Courts deciding who raises them.
4. You’ve fallen out with someone – this is yet another reason to review your Will as often, people forget who they have left something to and are horrified when they are reminded of this.
5. You want different things to go to different people. If you don’t have a valid Will, the intestacy rules lay out who takes what, and that means that although you may have promised this painting to a cousin, that necklace to a niece, or some money to a charity, they are unlikely to receive what was promised unless the gifts are specified in your Will.
These are only five of hundreds of good reasons to have a professionally-drawn, up to date, valid Will. If any of them apply to you, come and see us now!
If you think you don’t need a Will because you don’t have any relatives to inherit your estate … read on!
by Rebecca Haywood, March 30th, 2012
I read an interesting piece recently by Kevin Cole, a case manager at Title Research who undertake (amongst other services) probate genealogical research – or “heir hunting”, as it is popularly known.
Herbert Roy Hilsdon (known as Roy), an Oxford stonemason and bricklayer, died in December 2009 aged 79. He left no Will (ie he was intestate) and had no children, just a few cousins of whom he was aware, and – as it turned out – a lot more cousins who were unknown to him. In fact, after Title Research had carried out their research, it turned out that there were 45 people entitled to a share of Roy’s estate, on both his mother’s and his father’s sides, many from Oxfordshire but some as far away as Australia and the United States. Who gets what depends on how closely related the beneficiaries were to Roy and how many children their parents and grandparents had. Drawing up Roy’s family tree was an enormous and costly task requiring professional probate genealogy to ensure that only the legally entitled heirs were located. Moreover, Title Research had to ensure that every relevant birth, marriage and death was identified and recorded, to avoid the risk of unknown beneficiaries coming forward after the estate had been distributed.
Now, this may be a feel good story on one hand, in that an estate was successfully distributed to the beneficiaries legally entitled under the intestacy rules, and it has brought people together who did not even know of each other’s existence. But it is unlikely that Roy would have wanted all these strangers to share his estate. Obviously, he should have written a Will to specify his wishes. Even if the people who will inherit your estate under your Will are the same as would share it by virtue of the intestacy rules, it is still much better to have that written down in a professionally prepared Will to prove that it was your intention, and to appoint competent and trustworthy Executors, and take into account any other requirements you may have. This will avoid the need for lengthy time to be spent in double-checking the position on an intestacy as described above, not to mention the cost of that work, which will come out of your estate.
Contact me or one of my colleagues in the Wills Team at Mayo Wynne Baxter now to ensure that your Will is still up to date and valid, or to prepare a new one to avoid this potentially costly problem.
How much do you know about Wills?
by Rebecca Haywood, March 12th, 2012
You may have a Will or you may not; you may have written it yourself or it may have been prepared by a lawyer; it may be recent or it could be many years old. When was the last time you reviewed it? Have things changed since it was drawn up? Can you answer the following questions?
- Do you actually need a Will, or is it OK for your family to sort everything out however they want when you die?
- What is a Codicil?
- Can an executor of a Will also be a beneficiary, or does that mean they lose out on any benefit under the Will?
- If you leave something to your child but they die before you, will that gift automatically go to their spouse/civil partner or somewhere else?
- Do you have to leave anything to your family or can you cut some or all of them out?
- How should you amend a Will?
- If you get married or divorced, move house, change your name or have children, how will these life-changing events affect your Will?
- How should a Will be signed?
- How are joint bank accounts treated?
- If someone is not named in your Will, might they still end up being a beneficiary?
- What is the difference between a Will and a Power of Attorney?
- Are my beneficiaries going to have to pay tax?
- If your Will just leaves everything to your other half, do you need to put any more than that in it?
If you do not know or are not sure of the answers to any of these questions, you should seek professional advice to ensure that your requirements are properly covered in a professionally-drawn Will. If you don’t have a Will at all then you are running a very real risk of your estate passing to people you may not even know on your death.
You should also consider preparing a Power of Attorney in case this is needed in the future – who would pay your bills if you got hit by a bus? The banks need specific paperwork before they will let third parties access your accounts – and rightly so.
We are experts in Wills and we know all the answers – contact our Probate, Trusts & Wills team.
Rebecca Haywood
A New Year resolution or two you may not have considered…
by Rebecca Haywood, January 3rd, 2012
The last mince pie has been eaten, the pine tree needles are wedged so deeply into the carpet that they’ll never come out, and the rosy glow of the Christmas and New Year holidays are mere memories which disappeared like size 12s in the sale following your return to work and seeing the 1378 spam emails that arrived in your absence.
Time to turn your thoughts to ways of improving life in the year to come.
2012 is, as we know, expected to be an exciting year, what with the Olympics and the Mayan prediction of the end of days. And although that last was obviously a joke, we do all need to face facts and admit that most of us don’t know when our days will end. Bearing this in mind, I would therefore suggest that at the top of everyone’s New Year resolutions list should be a reminder to see a member of the Probate, Trusts and Wills Team at Mayo Wynne Baxter to ensure that their Will is up to date, valid and comprehensive, and that they give some thought to putting in hand power of attorney arrangements.
You could even combine updating your Will with a donation to charity – see http://www.family-footprints.co.uk/ for more details.
Not only will you feel a warm glow of satisfaction as you tick it off your list, but your family and friends will thank you for being so organised should the worst happen.
We’re here to help – contact your nearest office now!
Playing Forfeits…
by Rebecca Haywood, December 12th, 2011
The new Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 will come into effect from 1 February 2012.
The Act amends the current rules of succession in relation to both testate and intestate estates concerning who can inherit an interest forfeited by a beneficiary under the Forfeiture Act 1982. The forfeiture rule states that if a person unlawfully kills (or unlawfully aids, abets, counsels or procures the death of) another person they are prevented from taking any benefit under the deceased’s Will, and their own descendants may also be disqualified from inheriting. This is a longstanding common law rule in accordance with public policy – ie an offender should not be allowed to benefit from their crime.
The new Act states that if a person disclaims an inheritance or is prevented from receiving an inheritance on intestacy under the forfeiture rules, their issue can inherit as if the potential heir had died immediately before the intestate, rather than been disqualified through forfeiture. If there is a Will, the person entitled to the property instead of the person deemed to have died will depend on the terms of the Will. The Act also provides that surviving children of a minor will be able to inherit their parent’s interest in an intestate estate where that parent died before age 18 and was unmarried or had not entered a civil partnership.
If you have any queries over the implications of the above, your Will or the administration of an estate where you have an interest, do not hesitate to contact the Probate, Trusts & Wills Team at Mayo Wynne Baxter for advice.
Boycotting a Tenancy in Common
by Rebecca Haywood, October 26th, 2011
Former England cricketer and well-known “plain speaker” Geoffrey Boycott has lost a High Court case against a firm of solicitors who he claimed had given him bad advice when he and his former business partner and lover, Anne Wyatt, purchased a property in exclusive Sandbanks, Dorset, together for £450,000 in 1996.
It seems that the house was bought as “joint tenants” – which means that the parties own the property jointly and when the first dies, the property automatically passes to the survivor by a process called “survivorship”, notwithstanding anything to the contrary in the first deceased’s Will. However, Mrs Wyatt appears to have, at some point during her life, severed the joint tenancy which converted the way the house was held to “tenants in common” – both parties own specific shares, equal or unequal, and on death the deceased’s share passes into their estate and is dealt with under their Will.
A joint tenancy can be severed by one party serving a notice of severance on the other at their last known home or business address under the Law of Property Act 1925 – the notice does not have to be acknowledged as being received (although of course that would be good practice), and the other party cannot prevent the severance. Mr Boycott was very surprised to discover this and had apparently not realised that co-ownership could be changed in this way.
On Mrs Wyatt’s death in 2009, her share of the property (the house now being worth about £2.5 million) passed under her Will to her niece and not to Mr Boycott by survivorship as he had expected would happen. He therefore sued the Poole firm of solicitors Perrins Guy Williams for professional negligence and damages, stating that they did not explain to him that Mrs Wyatt could sever the joint tenancy and if he had known he might not end up owning the whole house, he would not have gone ahead with the purchase. The solicitors denied all liability and in fact, Mr Justice Vos decided that the case had been left too long before it was brought to court (Mr Boycott was aware of the problem in 2007). Mr Boycott now faces likely legal costs of more than £100,000.
Holding a property as tenants in common can be useful, but you do need to speak to your legal adviser, for example when purchasing the property, if facing a breakdown in your relationship or if a change needs to be made when you are dealing with your Will, to be sure of what you are doing.
Powers of Attorney – what does “registration” mean?
by Rebecca Haywood, September 20th, 2011
My 15 minutes of fame finally arrived last week when I was asked by a journalist from the BBC to comment on how poorly banks sometimes deal with powers of attorney. The report sought to raise awareness of how the banks (and other financial institutions) simply do not understand the difference between the different powers of attorney used, and what registration should imply in respect of the capacity of the donor.
Generally, banks and other institutions are most likely to come across one of three types of power of attorney. The first and most basic is a General or Ordinary Power of Attorney. Very simply, this is really meant for use when one might be unable to deal with one’s affairs for a specific period of time – perhaps off on a gap year, or going to a kibbutz for six months, or knowing that one’s house sale is likely to go through while one is enjoying that oft-promised Caribbean cruise. These documents are not registered at the Office of the Public Guardian and the Donor (the person giving the power) is meant to oversee and authorise what their Attorney does, so they must have the mental capacity to do so.
The next is an Enduring Power of Attorney. Although new EPAs cannot be created, there are a lot of them out there which are still valid and waiting to be used so they will be around for many years to come. The confusion with these so far as banks (etc) are concerned, is often caused by the fact that they can be used by the Attorney to act on behalf of the Donor whether the Donor has mental capacity or not. If the Donor still has capacity but perhaps just doesn’t want to be bothered with the minutiae of paying everyday bills, or is physically unable to deal with their own affairs (a broken wrist preventing them signing their cheques, for example) then the document can be used by the Attorney without the involvement of the OPG because again, the Donor is expected to oversee and supervise what their Attorney does under it. The terminology may also be confusing – presenting the document at the bank is called “registering” it; but should the Attorney believe that the Donor is becoming or has become mentally incapable of managing their affairs then a different kind of “registering” is needed, in the form of sending the document to the OPG for them to add to their registers, and serving notice of this on certain people as required by statute. The OPG may then require the Attorney to account for their management of the Donor’s affairs in the future.
Finally, the new Lasting Powers of Attorney can only be used once they have been registered at the OPG, whether the Donor has capacity or not (in the case of the Property and Affairs document) and only if the Donor has lost capacity (for the Health and Welfare document). This is clearly going to be even more confusing for third parties – at least if they are presented with an EPA registered at the OPG this should alert them that capacity is likely to be an issue, but all LPAs will be registered and so will give no indication as to the capacity of the Donor.
I believe that whenever a customer wants to register an EPA or an LPA, the relevant institution should take time to sit down with the Attorney and, if possible, the Donor, to go through with them exactly what their requirements are. The position is not always one of black or white, capable or incapable, and many people know that they are beginning to lose the ability to deal with everything themselves but still wish to be involved to some degree, perhaps by having a cash card with a daily withdrawal limit.
My recommendation would be always to see a qualified legal adviser as to the best type of power of attorney for you, and the completion and future use of it. Everyone should have something in place in case the unexpected happens to them and horror stories should not scare people away from these documents – some institutions need to give their staff more training, but if you have a legal professional acting for you, you can be sure that they will help you over any confusion.