“Lasting Powers of Attorney are like home insurance – you hope they will never be needed but when they are, they make life easier”

David Edwards is a partner with Burt Brill & Cardens and an expert in Wills, LPAs and protecting family wealth. Customers of The Future Perfect Company can benefit from 10% off normal rates by emailing medwards@bbc-law.co.uk and quoting this website.

Reaching 50 is a milestone for many people. It is often the point at which an individual starts to notice the aging process and often around this time that parents and other relatives reach an age where they need help or at least want to be sure that the procedures for getting help have been put in place.

Family and friends can provide a great deal of care and support but it is best to have all the legal paperwork in place so that if a more proactive role is required, the necessary arrangements can be made.

First of all, an up to date Will saves all sorts of difficulties after death.

Next up is a Lasting Power of Attorney (LPA). This sounds complicated but the idea behind it is simple. It is a legal document that allows you to name one or more people to do things for you if you are unwilling or unable to do them yourself.

For many individuals there comes a time when the business of paying bills, organising savings, keeping up with investments either becomes too much or, through failing mental health, simply impossible.

The person or persons named in the LPA can then take over and deal with things on behalf of the parent or relative or other elderly person.

There are some rules, including:

The person creating the LPA (the donor) must do so at a time when they are fully mentally capable. So make sure you have the LPA in place before it is needed.

The person or persons named must act in the interests of the donor. Only appoint someone you can trust without reservation. The supervision of the Office of the Public Guardian (OPG) is limited unless there are formal complaints and even then the OPG can appear very reluctant to take decisive action. If you do not have any suitable family or friends,  then a professional person, such as a solicitor, may agree to undertake this role for you. In that case, you are protected by strict professional conduct rules as well as insurance.

The LPA must be registered at the OPG before it is used. Again plan ahead, not least because the OPG is currently taking up to 14 weeks to complete this process, quite apart from worrying stories about LPAs being lost by the OPG during the registration process. All the more reason to get the LPA set up well before there is a chance it will be needed.

You need one LPA to deal with money and property and one to deal with personal welfare issues.

You can impose conditions and restrictions in them. If you are tempted to do that,  then take advice as sometimes you will find that what seems a sensible restriction actually produces real problems.

LPAs are a bit like your home insurance; you hope they will not be needed, many are never used but when they are they make life very much easier.

Finally what happens if it is too late for an LPA?

There is a solution, although it is more expensive, slower and more bureaucratic. It is to apply to the Court of Protection for the appointment of a Deputy for the elderly person who is no longer mentally capable. The application process requires a medical report and detailed information about the elderly person, their assets and family. Once the Deputy is appointed there are much more rigorous accounting and reporting processes as well as ongoing Court fees if there are substantial assets involved.

Don’t forget this is general comment; you should take legal advice relevant for your circumstances before acting – or deciding not to act.

Employment rights for carers?

Catriona Watt is an employment law expert at Fox lawyers,  www.foxlawyers.com

Business, Government and charity leaders have recently backed better support for employees who balance a job with caring for an older or disabled person. Ministers have also announced that six Government departments will sign an agreement with “Employers for Carers” on how they will work in partnership to develop and promote support for carers in the workplace.

Carer’s rights are on the current Government’s agenda as part of its endeavour to increase employment rates in the UK. The proportion of people having to balance work while caring for another will increase as life expectancy continues to rise and as people work longer to save for retirement. In its White Paper “Building Britain’s Recovery: Achieving Full Employment” published on 19 December 2009 the Government emphasised its aim to work with employers to promote flexible working practices. It intends to carry out consultations on how it can help people meet their caring responsibilities while remaining in work. This may include additional unpaid leave for planned responsibilities such as hospital visits and unpaid leave for carers of someone with a terminal illness.

At present, the law allows employees “reasonable” time off in certain circumstances and only in respect of “dependants” (which is limited to a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee). There is no specific guidance as to what constitutes “reasonable” time off but case law has shown that it will usually be a few hours or in some cases one or two days. Often this will not be long enough and it most cases it can be difficult for the employee to determine exactly when they might be able to return to work. 

Carers also have the right to request flexible working which an employer must accommodate unless it has a “legitimate business reason” for refusing the request. Some commentators have suggested that the right to request flexible working is a right without teeth because an employment tribunal can only subject the employer’s decision to very limited scrutiny and can only make very low awards of compensation if the right is breached. Employees also tend to find it difficult to discuss flexible working with their employers for fear of portraying themselves as not committed to their job.

Carers will however welcome the recent decision in the case of Coleman v Attridge Law which developed the concept of “associative discrimination”. This means that carers may also resort to the Disability Discrimination Act where they are treated less favourably than others or subjected to harassment because of the disability of the person they care for. The Government has already decided to prohibit associative discrimination in relation to other strands of discrimination (i.e. age and sex) in the Equality Bill, currently before Parliament, which is intended to come into force in October 2010.

The current Government has said that its long term ambition is to ensure that flexible working practices are embedded in all businesses across the UK, so that all employees are able to discuss opportunities for flexible working with their employer from day one of employment, or even pre-employment.

Of course a new Government may approach this issue very differently and it remains to be seen how this agenda is progressed after May 6th. Watch this space.

This is a general account of the law as it currently stands. It is always best to seek legal advice for specific queries.

Introducing Catriona Watt, our new legal expert

Let me introduce you to lawyer, Catriona Watt. As we all live longer, early retirement or indeed retirement at all, is likely to become the preserve of a lucky few. Many of us are going to need to, or may want to, work for longer. The law governing employment, partnerships and discrimination will be one of the areas in which the difficult issues raised by an ageing population will be most hotly debated. We are very lucky to have Catriona on board to guide us through this particular minefield.

• Name: Catriona Watt
• Born: Inverness, Scotland
• Lives: Clapham, London
• Occupation: Solicitor qualified in Scotland and England and Wales at Fox, an employment and partnership specialist law firm in the City of London. Previously worked at a large commercial practice in Edinburgh.
• Job description: Advising a wide range of employers and employees usually based in the City on employment and discrimination issues. We have seen and heard everything!
• Hobbies: Enjoying London life and its proximity to Europe, skiing and other outdoor pursuits and trips back to the bonnie highlands of Scotland

Introductions over, look out for Catriona’s regular blog postings over the coming months.